A  DIGEST 


rr 


THE  INTERNATIONAL  LAW 


UNITED   STATES, 


TAKEN    FROM 


DOCUMENTS  ISSUED  BY  PRESIDENTS 
AND  SECRETARIES  OF.  STATE, 


AND    FROM 


DECISIONS  OF  FEDERAL  COURTS  and  OPINIONS  OF  ATTORNEYS-GENERAL 


EDITED    BY 


FRANCIS    WHARTON,    LL.    D., 

AUTHOR  OF  A  TREATISE  ON  CONFLICT  OF  LAWS,  AND  OF  COMMENTARIES 
ON  AMERICAN  LAW. 


IN    THREE    VOLUMES. 


VOLUME    I. 


WASHINGTON. 

GOVERNMENT   PRINTING  OFFICE. 

1886. 


u. 

^  PRELIMINARY  REMARKS. 


The  following  is  the  preface  to  a  pamphlet  submitted  by  me,  in  March 
last,  to  Congress: 

"In  Mr.  Fillmore's  second  annual  message,  in  a  passage  understood 
to  have  been  furnished  by  Mr.  Webster,  then  Secretary  of  State,  we 
are  told  that  '  one  of  the  most  eminent  of  British  statesmen  said  in 
Parliament,  while  a  minister  of  the  Crown,  "  that  if  he  wished  for  a  guide 
in  a  system  of  neutrality,  he  should  take  that  laid  down  by  America  in 
the  days  of  Washington  and  the  secretaryship  of  Jefferson";  and  we 
see,  in  fact,  that  the  act  of  Congress  of  1818  was  followed  the  succeed- 
ing year  by  an  act  of  the  Parliament  of  England  substantially  the  same 
in  its  general  provisions.' 

"Of  the  same  period,  Mr.  Hall,  in  the  second  edition  of  his  work  on 
International  Law  (2d  ed.,  1884,  §  213),  thus  speaks:  'The  United  States 
had  the  merit  of  fixing  it  (the  doctrine  of  neutrality)  permanently.  On 
the  outbreak  of  war  in  Europe  in  1793  a  newly-appointed  French  min- 
ister, Mr.  Genet,  on  lauding  at  Charleston,  granted  commissions  to 
American  citizens  who  fitted  out  privateers,  and  manned  them  with 
Americans,  to  cruise  against  English  commerce.  Immediate  complaint 
was  made  by  the  English  minister,  who  expressed  his  "  persuasion  that 
the  Government  of  the  United  States  would  regard  the  act  of  fitting 
out  those  privateers  in  its  ports  as  an  insult  offered  to  its  sovereignty." 
The  view  taken  by  the  American  Government  was  in  fact  broader,  and 
Mr.  Jefferson  expressed  it  clearly  and  tersely  in  writing  to  Mr.  Genet. 
*  *  *  Taking  this  language  straightforwardly,  without  forcing  into 
it  all  the  meaning  which  a  few  phrases  may  bear,  but  keeping  in  mind 
the  facts  which  were  before  the  eyes  of  Mr.  Jefferson  when  he  penned 
it,  there  can  be  no  doubt  that  the  duties  which  it  acknowledges  are  the 
natural  if  not  inevitable  deductions  from  the  general  principles  stated 
by  Bynkershoek,  Vattel,  and  De  Martens ;  and  there  can  be  as  little 
doubt  that  they  had  not  before  been  frankly  fulfilled.  *  *  *  The  policy 
of  the  United  States  in  1793  constitutes  an  epoch  in  the  development 
of  the  usages  of  neutrality.  There  can  be  no  doubt  that  it  was  intended 
and  believed  to  give  effect  to  the  obligations  then  incumbent  upon 
neutrals.  But  it  represented  by  far  the  most  advanced  existing  opinions 
€L8  to  what  those  obligations  were;  and  in  some  points  it  even  went  further 
than  authoritative  international  custom  has  up  to  the  present  time  advanced. 
In  the  main,  however,  it  is  identical  with  the  standard  of  conduct  which  is 
now  adopted  by  the  community  of  nations.'' 

"'The  United  States  of  America,'  says  Sir  Robert  Phillimore  (1  Int. 
Law,  3d  ed.,  1879,  p.  555),  'began  their  career  as  an  independent 
country  under  wise  and  great  auspices,  and  it  was  the  firm  determina- 
tion of  those  who  guided  their  nascent  energy  to  fulfill  the  obligations 
of  international  law  as  recognized  and  established  in  the  Ohxistian 

m 


PRELIMINARY    REMARKS 

Commonwealth  of  which  they  had  become  a  member.  They  were  sorely^ 
tried  at  the  breaking  out  of  the  war  of  the  first  French  Revolution,  for 
they  had  been  much  indebted  to  France  during  their  coullict  with  their 
mother  country,  and  were  much  embarrassed  by  certain  chiuses  relat- 
ing to  privateers  in  their  treaty  with  France  of  1778;  but  in  1793,  under 
the  Presidency  of  Washington,  they  put  forth  a  proclamation  of  neu- 
trality, and,  resisting  both  the  threats  and  the  blandishments  of  their 
recent  ally,  took  their  stand  upon  sound  principles  of  international  law^ 
and  passed  their  first  neutrality  statute  of  1794.  The  same  spirit  in- 
duced the  Government  of  these  States  at  that  important  crisis  when 
the  Spanish  colonies  in  America  threw  off  their  allegiance  to  the  mother 
country,  to  pass  the  amended  foreign  enlistment  statute  of  1818;  in 
accordance  with  tchich,  during  the  next  year,  the  British  statute,  after  a 
severe  striiggle,  and  mainly  by  the  great  ]}owers  of  Mr.  Canning,  was  car- 
ried through  Farli anient.'' 

"Sir  Robert  Phillimore,  in  the  passage  last  quoted,  assigns  to  the 
Government  of  the  United  States  the  credit  of  establishing  liberal  and 
humane  principles  of  international  law  at  two  great  epochs : — that  of 
the  first  French  revolutionary  war  during  the  administration  of  Wash- 
ington and  the  secretaryship  of  Jefferson,  and  that  of  the  reconstitutiott 
of  the  relations  of  the  great  powers  of  the  civilized  world  consequent 
upon  the  overthrow  of  the  Spanish  supremacy  in  South  America,  and 
the  triumph  which  was  then  secured  to  liberal  principles  by  the  joint 
action  of  England  and  of  the  United  States  in  their  resistance  to  the 
projects  of  the  Holy  Alliance.  As  leader  in  the  first  of  these  epochs  of 
American  statesmanship  Mr.  Jefferson  is  entitled  to  the  pre-eminence, 
though  there  is  no  question  that  he  was  greatly  aided  in  coming  to  his 
conclusions  by  the  calm  wisdom  of  Washington.  Mr.  Monroe  was  Presi- 
dent during  the  second  of  these  epochs;  and  the  private  letters  to  and 
by  him  deposited  in  the  Department  of  State  show  that  he  was  aided 
in  reaching  the  positions  which  were  announced  by  his  administration 
in  this  relation,  not  merely  by  his  cabinet,  including  Mr.  J.  Q.  Adams, 
Mr.  Calhoun,  Mr.  Wirt,  and  Mr.  Crawford,  but  by  Mr.  Jefferson  and 
Mr.  Madison,  whom  he  freely  and  constantly  consulted  as  to  each  step 
in  the  important  action  which  he  then  took  in  the  domain  of  inter- 
national law. 

"  But  it  is  not  in  these  two  epochs  alone  that  the  statesmen  of  the 
United  States  showed  commanding  ability  in  this  important  depart- 
ment both  of  statesmanship  and  of  jurisprudence.  I  do  not  desire 
to  refer  to  Secretaries  of  State  who  are  now  living,  or  who,  if  recently 
dead,  are  still  associated  with  immediate  political  affairs.  But  when 
among  those  who  filled  the  secretaryship  in  prior  days  we  look  back 
on  Madison,  on  Monroe,  on  John  Quincy  Adams,  on  Clay,  on  Van 
Buren,  on  Edward  Livingston,  on  Forsyth,  on  Clayton,  on  Webster,  on 
Calhoun,  on  Edward  Everett,  on  Marcy,  on  Buchanan,  on  Cass,  and  on 
Seward,  it  is  impossible  not  to  see  that  the  continuous  exposition  of  in- 
ternational law,  so  far  as  concerns  this  country,  fell  into  the  hands  of 
men  who  were  among  the  first  statesmen  and  jurists  of  their  age,  sin- 
gularly fitted  to  maintain  in  all  relations,  what  was  maintained  in  the 
two  relations  just  noticed,  the  leadership  in  the  formation  of  a  liberal 
and  humane  system  of  international  jurisprudence.  And  they  have 
ably  done  this  work.  I  am  not  unfamiliar  with  the  writings  on  inter- 
national law  of  foreign  statesmen  and  jurists;  I  have  carefully  studied  not 
merely  the  messages  of  our  Presidents,  but  the  volumes,  now  nearly  four 
hundred  in  number,  in  which  are  recorded  (with  the  exceptions  to  be  pres- 

IV 


PRELIMINARY    REMARKS. 

ently  noted)  the  opiDions  of  our  Secretaries  of  State;  and  after  a  careful 
comparison  of  those  two  classes  of  documents  I  have  no  hesitation  in 
saying  not  only  that  the  leadership  ascribed  to  our  statesmen  in  the  two 
great  epochs  above  noticed  is  maintained  in  other  important  relations^ 
but  that  the  opinions  of  our  Secretaries  of  State,  coupled  with  those  of 
our  Presidents  as  to  which  they  were  naturally  consulted,  form  a  body 
of  public  law  which  will  stand  at  least  on  a  footing  of  equality  with  the 
state  ijapers  of  those  of  foreign  statesmen  and  jurists  with  which  it  ha» 
been  my  lot  to  be  familiar. 

"But  where  are  to  be  found  the  documents  which  embody  these  utter- 
ances of  those  charged  with  the  direction  of  our  foreign  affairs?  It  is 
a  fact  of  great  moment  to  us  at  present  that  these  documents,  in  the 
main,  are  inaccessible  to  the  mass  of  those  to  whom  their  study  is  im- 
portant, as  well  as  to  most  of  those  who  would  desire  to  appeal  to  them 
as  guides.  I  append  hereto  a  table  of  the  standards  to  which  I  have 
resorted  in  making  up  the  following  pages;  and  it  will  be  seen  that 
three-fourths  of  them  are  still  in  manuscript,  accessible  only  by  special 
permission  of  the  Secretary  of  State.  It  is  true  that  the  earlier  pa- 
pers of  the  Department  were  published,  though  somewhat  imperfectly, 
in  two  distinct  series  of  what  are  called  'State  Papers';  and  it  is  true 
also,  that  from  time  to  time  documents  from  the  Department  were 
printed  by  order  of  Congress;  that  from  1861  to  1868,  the  Department 
issued  compilations  of  its  correspondence  on  foreign  afitairs;  and  that 
in  1870,  the  publication  of  such  correspondence  was  finally  established 
as  a  matter  of  course. 

"But,  in  respect  to  these  several  sources  of  authority,  the  following  re- 
marks may  be  made: 

"(1)  In  the  manuscript  records  many  important  papers  are  omitted. 
A  sudden  call  from  Congress  came,  for  instance,  to  which  a  reply  was 
furnished  by  the  Secretary,  and  this  reply  was  forwarded,  as  often  hap- 
pened, without  being  entered,  as  it  should  have  been,  in  the  '  Eeport 
Book,'  which  is  assigned  for  such  papers.  But  by  far  the  most  com- 
mon cause  of  omission  is  the  occasional  use,  by  both  Presidents  and 
Secretaries,  of  informal  letters,  for  the  purpose  of  personal  explanation 
of  their  action  and  policy.  Some  of  these  letters  will  be  found  in  the 
published  volumes  of  the  works  of  Mr.  Jeiferson,  Mr.  Madison,  and  Mr. 
Webster.  A  far  larger  portion  of  them  may  be  found  in  the  unpub- 
lished papers  of  Mr.  Jefferson,  Mr.  Madison,  and  Mr.  Monroe,  now  de- 
posited in  the  Department  of  State.  I  have  drawn,  in  my  present  work, 
largely  from  both  these  sources,  as  well  as  from  the  manuscript  records. 

"  (2)  The  printed  documents,  whether  contained  in  reports  to  Congress 
or  in  the  '  State  Papers,'  or  in  the  annual  publications  of  the  Depart- 
ment, are  necessarily  defective.  This  arises  not  merely  because  many 
important  documents,  or  parts  of  documents,  are  kept  back  at  the  time, 
from  the  fact  that  their  publication  might  not  be  consistent  with  public 
interest,  but  because  expositions  of  general  rules,  which  are  of  so  great 
interest  in  a  work  such  as  that  in  which  I  am  now  engaged,  are  not  of 
equal  interest  in  publications  whose  object  is  to  report  the  action  of  the 
Government  in  concrete  cases. 

"(3)  So  far  as  concerns  the  publications  to  which  I  have  referred,  it 
must  be  noticed  that  not  only  do  they  cover  only  limited  sections  of  time 
in  our  political  history ;  not  only  are  they  necessarily  imperfect  in  their 
exposition  of  the  action  of  the  Department  even  in  the  periods  they 
cover;  not  only  do  they  suppress  passages,  which  though  of  great  future 
interest  in  settling  principles,  it  may  be  impolitic  at  the  time  to  make 


PRELIMINARY    REMARKS. 

public;  not  only  from  their  voluminousness  and  lack  of  system  is  it  a 
work  of  much  time  and  skill  to  find  in  them  rulings  pertinent  to  any 
particular  pending  issue;  but  they  are  themselves  in  many  important 
cases  unattainable.  Tlie  earlier  pubbcations  are  out  of  print.  Docu- 
ments printed  by  Congress  are,  from  time  to  time,  destroyed  in  masses 
by  Congressional  direction;  and  in  fact,  were  this  not  done,  the  public 
offices  and  vaults  of  Washington  would  be  gorged  with  documents  nine- 
tenths  of  which  have  ceased  to  be  called  for  and  are  without  interest 
to  any  but  the  antiquarian.  But  of  the  serious  effects  of  this  destruc- 
tion, in  respect  to  other  documents  of  immense  public  interest,  I  beg  to 
give  the  following  illustrations: 

"  Mr.  Fillmore's  second  annual  message  contains  an  exposition  of  inter- 
national law,  as  applied  to  our  then  foreign  relations,  which  is  understood 
to  have  been  furnished  by  Mr.  Webster,  and  which  is  one  of  the  most 
masterly  papers  which  has  been  produced  on  the  topic  with  which  we  are 
now  concerned.  Now,  the  only  detached  copy  of  this  message  to  be 
found  in  the  library  of  the  Department  of  State  is  cut  out  from  one  of  the 
newspapers  of  the  day;  nor  is  any  copy  now  obtainable  from  the  Con- 
gressional records,  or,  sr  far  as  I  can  learn,  from  any  private  publishing 
house. 

"Mr.  Everett,  during  the  short  period  in  which  he  filled  the  secre- 
taryship (the  period  intervening  between  the  death  of  Mr.  Webster  and 
the  accession  of  Mr.  Marcy  as  Secretary  in  the  administration  of  Mr. 
Pierce),  prepared,  aided  by  notes  left  by  Mr.  Webster,  instructions  on 
the  policy  to  be  adopted  towards  Cuba  by  the  United  States,  as  affected 
by  the  question  immediately  before  him  of  a  i^roposed  joint  agreement 
with  European  powers  of  abstention  from  any  future  annexation  of 
Cuba.  These  instructions,  signed  and  issued  by  Mr.  Everett,  were 
afterwards,  after  grave  consideration,  adopted  by  Mr.  Marcy.  I  must 
here  express  my  opinion  that  for  wisdom  and  eloquence  they  are  un- 
excelled by  any  papers  that  have  ever  issued  from  the  State  Depart- 
ment; and  that  they  contain  an  exi^osition  of  our  true  policy  as  to  ter- 
ritorial accretion,  which,  for  its  statesmanlike  power,  its  non-partisan 
broadness  of  base,  as  well  as  for  its  attractiveness  of  style,  ])eculiarly 
fit  it  to  be  one  of  the  standards  to  which  political  authorities  of  the 
future  should  appeal.  Yet  of  these  instructions  of  Mr.  Everett,  occupying 
as  they  did,  when  printed,  a  pamphlet  of  sixty-four  pages,  I  have  been 
unable,  though  I  have  searched  most  diligently,  to  obtain  a  single  copy. 
The  edition  published  iu  Boston  is  exhausted,  nor  is  it  likely  that  it 
would  be  reprinted  by  private  enterprise. 

"  Another  illustration  may  be  found  in  Mr.  Marcy's  various  expositions 
of  the  Koszta  case.  One  or  two  of  these  may  still  be  obtained  iu  anti- 
quarian stores.  But  that  which  I  regard  the  ablest,  in  which  he  discusses 
the  law  of  domicil  with  almost  unequaled  sagacity  and  exactness,  has 
never  tbund  its  way  into  print. 

"  We  fall  back,  then,  upon  the  manuscript  copies  of  the  Department  of 
State,  and  we  are  admonished,  by  the  destruction  of  some  of  the  earlier 
volumes  at  the  burning  of  Washington  by  the  British,  as  well  as  by 
the  loss  of  public  documents  iu  other  Departments  by  what  are  called 
accidental  tires,  that  in  respect  to  these  standards  we  hang  on  a  line  by 
no  means  insured  from  perishing. 

"  Whether  these  records  should  be  reprinted  as  a  whole  is  a  question 
of  interest.  If  they  were,  they  would  cover  four  hundred  volumes  of 
the  ordinary  law-book  size.  It  would  be  difficult  for  one  seeking  in 
haste  to  find  rulings  on  some  pending  question  of  international  law, 

VI 


PRELIMINARY    REMARKS. 

to  come  to  an  accurate  result  from  the  study,  iu  the  short  time  assi^ed 
to  him,  of  so  vast  a  mass  of  authorities. 

"I  have  endeavored  to  meet  this  want  by  the  present  digest.  In 
seeking  for  material  I  have  turned  every  page  of  the  volumes  of  records 
in  the  Department  to  which  I  have  referred ;  and  I  have  consulted  in 
connection  with  them  the  various  publications  to  be  found  in  the  an- 
nexed table.  From  these  standards  I  have  copied  whatever,  in  the  way 
of  principle,  bears  on  international  law;  and  the  extracts  I  have  thus 
made  I  have  arranged  in  the  form  of  a  digest,  placing  them  chrono- 
logically under  their  respective  heads.  Of  the  materials  that  apply,  in 
the  way  of  principle,  to  the  task  before  me,  I  believe  I  have  omitted  no 
passages  giving  the  deliberate  opinions  of  Secretaries  from  the  begin- 
ning of  the  Government  to  the  present  day.  I  am  conscious  of  no  party 
predilections  in  making  these  extracts;  nor  in  fact  is  the  topic  one  on 
which  party  predilections  could  operate.  We  have  been,  throughout  the 
country,  one  in  our  principles  of  international  law  from  the  foundation 
of  our  Government  to  the  present  day.  If  there  was  an  alleged  ex- 
pansion of  neutral  duty  in  the  late  civil  war,  this  was  only  apparent; 
and  I  have  to  say  that  no  more  unqualified  assertion  of  neutral  rights 
is  to  be  found  than  that  contained  iu  Mr.  Seward's  vindication  of  his 
action  iu  the  Trent  affair.  And  if  sometimes  he  threw  out  argumenta- 
tively  positions  inconsistent  with  those  which  in  other  administrations 
have  been  part  of  the  settled  policy  of  the  Government,  these  were  al- 
ways afterwards  modified  by  him  so  as  to  conform  to  such  policy,  and 
had  at  least  the  good  effect  of  bringing  to  the  same  common  ground 
the  British  Government  of  the  day,  receding  in  this  respect  from  the 
ground  taken  by  its  predecessors.  A  more  serious  departure  from 
this  policy  might  be  claimed  to  exist  in  the  rulings  of  the  Geneva  con- 
ference; but  it  must  be  remembered  that  the  action  of  this  conference 
was  not  the  action  of  the  Department  of  State,  which  not  long  after 
the  publication  of  its  adjudication  disclaimed,  as  will  hereafter  be  seen, 
its  binding  authority.  With  the  exception  of  these  transient  fluctuations 
of  opinion,  not  worked  into  the  Department  as  part  of  its  permanent 
system  of  law,  the  action  of  the  Department,  no  matter  what  may  have 
been  the  party  character  of  the  administration,  has  been  one  of  consist- 
ent logical  progress.  There  is  submission  to,  and  yet  not  repetition 
of,  the  old  law  laid  down  by  our  first  administration,  as  a  law  which, 
while  distinctively  American,  has  established  a  jurisprudence  for  the 
civilized  world.  This  law  is  one  in  its  basis,  yet,  as  is  the  case  with  all 
true  law  whose  continued  existence  depends  on  its  responsiveness  to 
popular  conscience  and  need,  adapts  itself,  in  its  own  instinctive  evolu- 
tion, to  the  contingencies  of  each  social  and  political  juncture  that  occurs. 

"For  the  purposes  of  elucidation,  I  have  concluded,  in  their  appro- 
priate heads  iu  this  digest,  the  decisions  of  the  courts  of  the  United 
States  and  of  the  Attorneys-General  on  the  questions  involved. 

"  I  am  indebted  to  John  B.  Moore,  esq.,  of  the  Department  of  State,  to 
whose  great  aid  in  other  respects  I  am  glad  to  acknowledge  my  obliga- 
tions, for  a  compilation  of  the  rulings  of  commissions  established  by 
the  United  States,  in  connection  with  other  powers,  for  the  settlement 
of  points  in  international  dispute." 

On  July  28,  1886,  the  following  resolution,  adopted  by  Congress,  was 
aj)proved  by  the  President: 

Resolved  by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Cangress  assembled,  That  there  be  printed  the  usual  number 

VII 


PRELIMINARY   REMARKS. 

of  copies  of  "A  Digest  of  the  International  Law  of  the  United  States, 
taken  troui  the  Opinions  of  Presidents  and  Secretaries  of  State,  and  of 
Attorneys-General,  and  from  the  Decisions  of  Federal  Courts,  and  of  Joint 
International  Commissions  in  which  the  United  States  was  a  Party";  and 
that  there  be  printed  in  addition  to  said  usual  number,  one  thousand 
copies  for  the  use  of  the  State  Department,  one  thousand  copies  for  the 
use  of  the  Senate,  and  two  thousand  copies  for  the  use  of  the  House  of 
Bepresentatives;  said  Digest  to  be  printed  under  the  editorial  super- 
vision of  Francis  Wharton,  and  the  editing  to  be  paid  for  at  a  price  to 
be  fixed  by  the  chairman  of  the  Committee  on  Foreign  Relations  of  the 
Senate,  and  the  chairman  of  the  Committee  on  Foreign  Affairs  of  the 
House  of  Eepresentatives,  acting  with  the  Joint  Committee  on  Printing, 
not  to  exceed  ten  thousand  dollars. 

Immediately  after  the  approval  of  this  resolution  1  placed  in  the  hands 
of  the  Public  Printer  the  digest  it  calls  for,  so  far  as  concerns  docu- 
ments emanating  from  Presidents  and  Secretaries  of  State,  and  opinions 
of  Federals  courts  and  Attorneys-General,  with  editorial  comments  on 
the  same. 

The  digest  of  the  rulings  of  the  international  commissions,  which 
I  mentioned  in  the  preface  above  given  as  undertaken  by  the  Hon.  John 
B.  Moore,  will  occupy  a  separate  volume.  Of  the  importance  of  such  a 
digest  I  cannot  speak  too  highly.  I  have  also  to  repeat  my  acknowl- 
edgement of  Ml'.  Moore's  aid  as  stated  above,  and  of  the  services  ren- 
dered by  Mr.  J.  Wilson  Bayard,  of  the  Department  of  State,  not  merely 
in  the  i)reparation  of  the  work  for  the  press,  but  in  proof  reading. 

So  far  as  concerns  the  present  volumes,  the  following  observations 
are  to  be  made : 

The  authorities  on  whom  I  have  relied  are:  (1)  Presidents'  messages; 
(2)  opinions  and  reports  of  Secretaries  of  State;  (3)  opinions  of  Attor- 
neys-General; (4)  opinions  of  Federal  courts;  (5)  paj^ers  emanating  from 
the  War,  Navy,  and  Interior  Departments ;  (6)  unofficial  letters  of  our 
leading  statesmen,  of  which  many  of  great  importance  are  drawn  from 
the  Jefferson,  Madison,  and  Monroe  papers  on  deposit  in  the  Depart- 
ment of  State;  (7)  standard  works  on  international  law  and  history.  As 
to  the  latter,  I  have,  as  a  rule,  confined  myself  to  quotations  from  authors 
not  readily  accessible  in  this  country.  Were  I  to  have  quoted  from  Mr. 
Wheaton,  for  instance,  all  passages  pertinent  to  the  topics  I  had  before 
me,  I  would  have  republished  the  greater  part  of  his  invaluable  treatises. 
This  for  various  reasons  could  not  be  done.  I  have  freely  cited,  how- 
ever, the  notes  of  Mr.  Dana  and  Mr.  Lawrence  to  Mr.  Wheaton's  work 
on  International  Law,  and  1  have  made  large  use  of  Mr.  J.  C.  Bancroft 
Davis'  comments  on  treaties  published  in  the  volume  of  treaties  issued 
by  the  Department  of  State.  I  have  frequently,  also,  relied  on  Sir 
Sherstou  Baker's  edition  of  General  Halleck's  International  Law,  as  well 
as  on  the  work  on  international  law  published  by  President  Woolsey. 
vui 


PRELIMINARY    REMARKS. 

The  resolution  under  which  I  have  acted  directs  that  the  work  should 
be  printed  under  my  "editorial  supervision."  This  I  have  construed 
as  giving  me  such  editorial  control  over  the  material  in  my  hands  as 
would  enable  me  to  present  it  faithfully  and  effectively  to  the  public  eye. 

So  far  as  concerns  the  authoritative  documents  open  to  me,  my  method 
of  treatment  has  been  simple.  I  have  carefully  searched  all  the  records 
of  the  Department  in  which  are  contained  its  diplomatic  correspondence, 
and  the  official  reports  of  Secretaries,  and  I  have  copied  therefrom  all 
passages  relative  to  international  law.  When  these  passages  were  not 
affirmations  of  prior  rulings,  I  have  entered  them  in  full ;  when  they  were 
such  affirmations,  I  have  noted  them  as  such,  or  I  have  given  specifically 
the  points  they  decide.  The  same  course  I  have  taken  in  respect  to 
Presidents'  messages  relative  to  international  law.  Of  the  opinions  of 
the  Attorneys-General  aud  of  Federal  courts  I  have  generally  given 
only  abstracts,  considering  these  to  be  merely  auxiliary  to  the  main 
object  of  the  work. 

In  the  pamphlet  presented  by  me  to  Congress  in  March  last,  I  gave 
an  analysis  of  the  work  as  projected.  This  analysis  being  before  the 
committees  of  the  Senate  and  House,  to  whom  the  matter  was  referred, 
and  being  the  basis  of  their  reports  recommending  publication,  has  been 
considered  by  me  as  so  far  approved  as  to  make  it  my  duty  to  retain  it, 
with  such  slight  modifications  as  became  subsequently  requisite. 

There  will  be  little  difficulty,  I  apprehend,  in  mastering  the  plan  of  the 
work,  when  it  is  observed  that  iu  each  successive  head  of  the  analysis 
the  material  is  arranged  as  follows : 

(1)  Messages  of  Presidents  and  documents  emanating  from  Secretaries 
of  State,  in  chronological  order. 

(2)  Opinions  of  Federal  courts,  in  chronological  order. 

(3)  Opinions  of  Attorneys-General,  in  chronological  order. 

When,  however,  the  topic  is  exclusively  of  a  judicial  character,  I  have 
placed  the  opinions  of  the  courts  in  the  front  rank. 

In  order  to  distinguish  rulings  of  the  three  classes  just  mentioned,  I 
have  given  them  in  type  of  long  primer  leaded. 

Unofficial  opinions  of  leading  statesmen,  and  opinions  of  text- writers, 
I  have  placed  in  the  same  type,  solid,  inclosed  in  quotation  marks.  In 
the  latter  type,  not  in  quotation  marks,  are  given  my  own  editorial 
comments. 

Material  of  a  secondary  character,  introduced  by  way  of  illustration, 
is  placed  in  brevier. 

F.  W. 

November  20, 1886. 

IX 


TABLE  OF  PRESIDENTS  AND  SECBETABIES  OF  STATE,  WITH  THE  DATES 
OF  THE  COMMENCEMENT  OF  THE  TERMS  OF  EACH,  FROM  1789  TO 
1885. 


PRESIDENTS. 


Name. 


George  Washington.. 


John  Adams 

Thomas  Jefferson 

James  Madison 

James  Moxroe 

John  Quincy  Adams 

Andrew  Jackson 

Martin  Van  Buren 

William  H.  Harrison  .. 
John  Tyler 

James  K.  Polk 

Z AOHARY  Taylor 

Millard  Fillmore 

Franklin  Pierce 

James  Buchanan 

Abraham  Lincoln 

Andrew  Johnson 

Ulysses  S.  Grant 

Rutherford  B.  Hayes  . 

James  A.  Garfield 

Chester  A.  Arthur 

Grover  Cleveland 


Commence- 
ment of  term. 


1789,  Apr.  30 


1797,  Mar.  4 

1801,  Mar.  4 

1809,  Mar.  4 

1817,  Mar.  4 

1825,  Mar.  4 

1829,  Mar.  4 


1837,  Mar.  4 
1841,  Mar.  4 
1841,  Apr.  4 


1845, 

Mar. 

4 

lb  19, 

Mar. 

4 

1850, 

July 

10 

1853, 

^liir. 

4 

1857, 

Mar. 

4 

1861, 

Mar. 

4 

1865, 

Apr. 

15 

1869, 

Mar. 

4 

1877, 

Mar. 

4 

1881, 

Mar. 

4 

1881, 

Sept. 

19 

1885,  Mar.    4 


SECRETARIES  OF  STATE. 


Name. 


Thomas  Jefferson 

Edmund  Randolph 

Timothy  Pickering 

John  Marshall 

James  Madison 

Robert  Smith 

James  Monroe 

John  Quincy  Adams 

Henry  Clay 

Martin  Van  Buren 

Edward  Livingston  . . . 

Louis  McLane 

John  Forsyth 

Daniel  Webster 

Hugh  S.  Legar^ 

Abel  P.  Upshur 

John  Nelson 

John  C.  Calhoun 

James  Buchanan 

John  M.  Clayton 

Daniel  Webster 

Edward  Everett 

William  L.  Marcy 

Lewis  Cass 

Jeremiah  S.  Black 

William  H.  Seward 

Elihu  B.  Washburne... 

Hamilton  Fish 

William  M.  Evarts 

James  G.  Blaine 

Frederick   T.   Freling- 

HUYSEN. 

Thomas  F.  Bayard 


Date  of 
appointment. 


1789,  Sept.  26 

1794,  Jan.  2 

1795,  Dec.  10 

1800,  May  13 

1801,  Mar.  5 
1809,  Mar. 
1811,  Apr. 
1817,  Mar. 
1825,  Mar. 
1829,  Mar. 
1831,  May  24 

1833,  May  29 

1834,  June  27 


1841, 

1843, 
1843, 
1844, 
1844, 
1845, 
1849, 
1850, 
1852, 
1853, 
1857, 
1860, 
1861, 


Mar.  5 
May  24 
July  24 
Feb.  29 
Mar.  6 
Mar.  6 
Mar.  7 
July  22 
Nov.  26 
Mar.  7 
Mar.  6 
Dec.  17 
Mar.  5 


1869,  Mar.  5 

1869,  Mar.  11 

1877,  Mar.  12 

1881,  Mar.  5 

1881,  Dec.  12 

1885,  Mar.  6 


XI 


LIST  OF  AUTHORITIES  REFERRED  TO. 


Abbott.    On  merchant  ships  and  shipping.    (11th  ed.) 

Abegg.     Ueber  die  Bestrafung  der  im  Auslande  begangenen  Verbrechen.    1819. 
Abrbu  Y  Bektodano,  F.  J.  DE.     Tratado  juridico-politico  sobre  pressas  de  mar  y 

calidades  que  deben  concurrir  para  hacerse  legit- 
amameute  el  corso.     Cadiz,  1746. 
Adams,  J.    The  works  of,  with  the  life  of  the  author,  by  C.  F.  Adams.     Boston,  1856. 

Life,  by  John  T.  Morse,  jr.     Boston,  1885 
Adams,  J.  Q.     Memoirs,  comprising  portions  of  his  diary  from  1795  to  1848,  edited  by 
by  C.  F.  Adams.     Philadelphia,  1874-'77. 
The  duplicate  letters;  the  Fisheries  and  the  Mississippi.    Washington, 
1822. 
Ahrens.     Conrs  de  droit  uaturel.     1840. 
Albany  Law  Journal.    Articles  on  international  law. 
Aloorta.     Tratado  de  derecho  internacional.     Buenos  Ayres,  1878. 
Alien  claims  against  Government,  law  of.      Washington,  Grovernment  Printing 

Office,  1875. 
Alison,  A.     History  of  Europe  during  the  French  Revolution.     (8th  ed.)  1853. 
American  Law  Eeview.    Articles  on  international  law. 
American  State  Papers.     Foreign  Relations,  1789-1828.     6  vols.     Folio. 

Miscellaneous. 
(Wait's  edition,  see  Wait.) 
Amos,  S.     Lectures  on  international  law.     London,  Stevens  &  Sons,  1874. 

Political  and  legal  remedies  for  war.     New  York,  1880. 
Annals  of  Congress.    1854^. 

Annuaire  des  Deux  Mondes.     Articles  relative  to  international  law. 
Annuaire  de  l'Institut  be  droit  international.     Gand,  1877-'85. 
Annual  Register.     The  London,  1758. 
Archivs  Diplomatiques.     Paris,  1861^. 
Attorneys-General,  Opinions  of  the.     16  vols.,  1852-81. 

Atlantic  Magazine.     Article  by  Mr.  BoUes  on  Confederate  Navy.     (See  Index.) 
Austin.     Province  of  jurisprudence  determined.     1832. 
AZUNI.     Syst^me  universel  de  xjriucipes  du  droit  maritime  de  I'Europe ;  traduit  de 

I'ltalien,  par  J.  M.  Digeon.     1790. 
Bancroft,  George.     History  of  the  United  States,  etc.     Boston,  1866. 

History  of  the  Formation  of  the  Constitution  of  the  United 
States.     1  vol.     1886. 
Bar,  L.  von.     Das  Internationale  Privat  und  Strafrecht.     Hanover,  1862.        * 

(See  also  the  same  translated,  with  notes,  by  G.  R.  Gillespie.    Edin- 
burgh, 1883.) 
Ueber  die  Internationale  Anwendung  des  Strafgesetzes.     28  Gerichts- 

saal. 
Interpretations  divergentes  du  trait6  d'extradition  de  1842  entre  I'An- 
gleterre  et  les  fitats-Unis.     Revue  de  droit  int.,  ix,  5. 
Bemis,  G.     American  neutrality.     Boston,  1866. 
Benton,  T.  H.     Thirty  years  in  the  Senate.     2  vols.    1854-'56. 

Debates  in  Congress  from  1789  to  18.56.     15  vols.    New  York,  1857. 


LIST    OF    AUTHORITIES    REFERRED    TO. 

Bernard,  M.     Four  lectures  on  subjects  connected  with  diplomacy.     London,  1868. 
Notes  on  some  questions  suggested  by  the  case  of  the  Trent. 
A  historical  account  of  the  neutrality  of  Great  Britain  during  the 
American  civil  war.     London,  1870. 
Billot.     Traits  de  I'extradition.     Paris,  1874. 
Blackwood's  Magazine.     Articles  on  international  law. 
Blaine,  J.  G.     Twenty  years  of  Congress,  etc.     1884. 

Bluntschli,  J.  C.     Das  moderue  Volkerrecht  der  civilisirten  Staaten  als Rechtsbuch 
dargestellt.     Nordlingen,  1878. 
Geschichte  des  allegemeinen  Staatsrecht,  etc.     1881. 
Das  Beuterecht  im  Kriege.     1878. 
BONFILS.     De  la  competence  des  tribunaus  Francais  h  l'6gard  des  6trangers. 
BOUVIER.     Law  dictionary  adapted  to  Constitution  and  laws  of  the  United  States. 
Boyd,  A.  C.     Edition  of  Wheaton's  International  law.     London,  1878. 
British  and  Foreign  State  Papers.     Compiled  by  the  librarian  and  keeper  of  the 

papers,  foreign  office.  Vols.  1  to  69,181^78. 
London,  1841-'85. 
Brocher,  C.     Etude  sur  la  lettre  de  change  dans  ses  rapports  avec  le  droit  interna- 
tional priv(S.     Revue  de  droit  int.,  vi,  5,  196. 
Etude  sur  les  conflits  de  legislation  en  matifere  de  droit  p^nal.    Kevue 

de  droit  int.,  vii,  22,  169. 
Nouveau  trait6  de  droit  international  priv6.     Paris,  1876. 
Buchanan,  James.    Mr.  Buchanan's  administration  on  the  eve  of  the  rebellion.    New 
York,  1866. 
Life  of,  by  George  T.  Curtis.     New  York,  1883. 
BULMERINCQ,  A.     Praxis,  Theorie  und  Codification  des  Volkerrechts.     Leipzig,  1874. 
Butler,  Rev.  C.  M.     Reminiscences  of  Webster  (pamphlet). 
Bynkershoek,  C.  van.     QuiBstionum  juris  publici.     1751.     Translation  by  Dupon- 

ceau.     Philadelphia,  1810. 
Calhoun,  J.  C.     The  works  of,  edited  by  R.  K.  Crall6.     New  York,  1854. 
Disquisition  on  Government.     Columbia,  1851. 
Life  of,  by  Dr.  H.  von  Hoist.     Boston,  1882. 
Calvo,  Ch.     Droit  international  th^orique  et  pratique.     (3d  ed.)    Paris,  1880. 
Campbell,  Lord.    Autobiography  of,     (2d  ed.)  1881. 

Caratheodoky,  E.     Du  droit  international  concernant  les  grands  cours  d'eau.    Leip- 
zig, 1861. 
Chalmers.     Collection  of  opinions,  &c. 

Chitty,  Joseph.     Treatise  on  Law  of  Nations.     Boston,  1812. 
Choate,  Rufus.     Memoirs  of,  by  Joseph  Neilson,  1884. 
Clarke,  E.     A  treatise  on  the  law  of  extradition.     (2d  ed.)    London,  Stevens  <& 

Haynes,  1874. 
Consular  Regulations  of  the  United  States.     1881. 

Reports.     Published  periodically  by  the  Department  of  State. 
Creasy,  Sir  Edward  S.     First  platform  of  International  Law.    London,  1876. 
Criminal  Law  Magazine.     Articles  on  international  criminal  jurisdiction. 
CrokiSr,  J.  W.     Correspondence  and  Diaries  of;  edited  by  L.  J.  Jennings.     3  vols. 

London,  1884. 
CUKTIS,  G.  T.     The  Faith  of  Treaties.     1886. 
Life  of  Buchanan.     1883. 
Life  of  Webster.     1870. 
CUSSY,  F.  de.     Dictionnaire  du  Diplomate  et  du  Consul.     1846. 
Customs  and  Navigation  Regulations  of  the  United  States.    1884. 
Debates  of  Congress.     (Benton's  abridgment.     See  Benton.) 
De  Bow's  Review.    Articles  on  consuls. 

XIV 


LIST    OF    AUTHOEITIES    EEFERRED    TO. 

Dahlgren,  Kear-Admiral  John  A.     Maritime  International  Law.     Boston,  1877. 
Daixas,  G.  M.     a  series  of  letters  from  London,  written  during  the  years  1856,  1857, 

1858,  1^59,  and  1860.     Philadelphia,  1869. 
Dai^a,  R.  H.,  jr.    Elements  of  International  Law,  by  H.  Wheaton,  edited,  with  notes, 

by.     Boston,  1866. 
Davis,  J.  C.  Bancroft.     Notes  on  Treaties  of  the  United  States.     1873. 

Les  tribunaux  de  prises  des  fitats-Unis.     Paris,  1878. 
Deane,  H.  B.    The  Law  of  Blockade ;  its  History,  Present  Condition,  and  Probable 

Future.    An  International  Law  Essay.     London,  1870. 
Dicey,  A.  O.     A  Treatise  on  the  Law  of  Domicil  in  England.     London,  1879. 
»  Diplomatic  Correspondence  of  the  United  States,  1861-1868.    Washington,  1863- 

1869. 
Drx,  J.  A.     Memoirs  of,  by  Morgan  Dix.     2  vols.     New  York,  1883. 
DUPONCEAU.  P.  S.     Translation  of  Bynkershoek  on  International  Law.     1810. 
DUER,  John.     The  Law  of  Marine  Insurance,  ifcc.    2  vols.     New  York,  1845. 
Lectures  on  Jurisprudence  of  United  States.     New  York,  1858. 
Edinburgh  Review.     Articles  on  international  law. 
Ellenborough,  Lord.     Political  Diary  of.    2  vols.     London,  1881. 
Elliot,  J.     The  American  Diplomatic  Code,  embracing  a  collection  of  treaties,  &c., 
between  the  United  States  and   foreign  powers  from  1778  to  1834. 
Washington,  1834. 
Engelhard.     Du  regime  conventionel  des  fleuves. 

Esperson.     La  questione  Anglo-Americane  dell'  Alabama,  4k,G.    Firenze,  1869. 
Fauchille.     Blocus  m.aritime.    Paris,  1882. 

Field,  D.  D.     Draft  outlines  of  an  international  eode  (2d  ed.).     New  York,  1876. 
FiORE,  P.    Nouveau  droit  international  public ;  traduite  de  I'ltalien  et  annot6e  par 

Charles  Antoine  (2d  ed.),  1885. 
FOELIX.  "^Le  droit  international  priv6  (3d  ed.),  1856. 
FOLLEVILLE,  D.  DE.     Traits  de  la  naturalization.     Paris,  1880. 

FOOTE,  John  A.     A  concise  treatise  on  private  international  jurisprudence  based  on 
the   decisions    in   the    English    courts.     Loudon,  Stevens    and 
Hayues,  1878. 
Foreign  Relations  of  the  United  States,  1870-1885.     Washington,  1871-1886. 
Forsyth.     Cases  and  opinions,  &c.     Loudon,  1869.  ' 

Foster,  J.  W.     International  awards  and  national  honor.    1886. 
Fox,  C.  J.     Life  of,  by  Lord  J.  Russell.     Loudon,  1859. 

Franklin,  B.     The  Works  of,  with  Notes  and  a  Life  of  the  Author,  by  J.  Sparks.    Bos- 
ton, 1836-1840. 
Gallatin,  A.    Life  of,  by  Henry  Adams.     Philadelphia,  1879. 
John  Austin  Stevens.     Boston,  1884. 
The  Works  of,  edited  by  Henry  Adams.     Philadelphia,  1879. 
Oerry,  Elbridge.     Life  of,  by  J.  T.  Austin.     Boston,  1828,  1829. 
Gessner,  L.     Le  droit  des  neutres  sur  mer.     Berlin,  1876. 

Kriegfiihrende  und  neutrale  Miichte.     Berlin,  1877. 
Zur  Reform  des  Kriegs-Seerechts.     Berlin,  1B75. 
Geyer.     Ueber  die  neueste  Gestaltung  des  Volkerrechts.     1866. 
Greville's  Memoirs  and  Diary.     Ist  series,  4th  ed.,  1875 ;  2d  series.     1884. 
Grotius.     Le  droit  de  la  guerre  et  de  la  paix.    Nouvelle  ed.,  par  Pradier-Fod6r6. 

Paris,  1867.     3  vols. 
OuizoT,  F.  P.  G.     An  Embassy  to  the  Court  of  St.  James,  in  1840.    London,  1862. 
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Hall,  W.  E.     International  Law.     Oxford,  Clarendon  Press,  1880. 

Rights  and  duties  of  neutrals.     London,  1874. 
Hatj.eck.     International  law.    A  new  edition,  with  notes  and  cases,  by  Sir  Sherston 
Baker.    Kegan,  Paul  &  Co.    London,  1878. 

XV 


LIST    OF    AUTHORITIES    REFERRED    TO. 

Hamilton,  Alexander,     The  Works  of,  edited  by  H.  C.  Lodge. 

Letters  of  Pacificus  [Hamilton]  and  Helvidius  [MadisonJ 
on  the  proclamation  of  neutrality  of  1793.     Washington. 
1845. 
Life  of,  by  H.  C.  Lodge.     Boston,  1882. 
Hansard.     Parliamentry  Debates. 
Hartaiann.     Institutionen  des  praktischen  Volkerrechts  in  Friedenszeiten  (2d  ed.)^. 

1878. 
Hautefeuille,  L.  B.     Questions  de  droit  maritime  international.     Paris,  1868. 
Heffter,  a.  W.     Droit  international  public  de  I'Europa.     Berlin  and  Paris,  1866. 

Das  europaische  Volkerrecht  (7th  ed.),  1881.  > 

Henry,  M.  P.     Admiralty  Jurisdiction  and  Procedure.    Philadelphia,  1885. 
HiUDRETH,  Richard.     History  of  the  United  States  (2d  ed.).  New  York,  1851, 1852. 
HiSTORiCUS.     Sir  W.  G.  Vernon-Harcourt.     Letters  by,  on  some  questions  of  inter- 
national law ;  reprinted  from  the  Times,  with  considerable  additions' 
London  and  Cambridge,  1863. 
Holland,  T.  E.     The  Elements  of  Jurisprudence.     Oxford  and  London,  1880. 

De  I'application  de  la  loi.    Revu  ede  droit  int.,  vol.  xii,  1880,  p.  565, 
Holst,  F.  von.     Verfassung  und  Democratie  der  Vereinigten  Staaten,  2d  vol.,  under 
title  of  Verfassungs-geschicte  der  Vereinigten  Staaten  seit  der  Ad- 
ministration Jacksons.     Same,  translated  by  J.  J.  Lalor,  2d  vol. 
Chicago,  1879. 
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Prol6gom^nes   d'un   syst^me    raisonn^    du    droit    intemationaL 
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Life  of,  by  George  T.  Curtis.     2  vols.     1870. 
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The  Conflict  of  Laws  (2d  ed.).     Philadelphia,  1881. 
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The  Law  of  Negligence  (2d  ed.).      Philadelphia,  1878. 
State  Trials  of  the  United  States.     Philadelphia,  1849. 
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History  of  the  Law  of  Nations  in  Enropo  and  America.     New 

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Zavala.     Derecho  internacional.     Guadalajara,  1886. 

XIX 


ANALYSIS 


CHAPTER  I. 


SOVEREIGNTY  OVER   LAND. 

I.  Territorial  sovereign  supreme,  §  1. 

II.  Discovery  the  basis  of  title,  ^  2. 

III.  Conquered  territory  subject  to  temporary  military  control,  $  3. 

IV.  Conquered,  annexed,  ok  divided  territory  retains  its  prior  municipal 

institutions,  ^  4. 
V.     Benefits  and  burdens  pass  to  conquering  or  annexing  sovereign,  ^  5. 
VI.     But  such  oou.vtry  not  affected  by  acts  of  prior  sovereign  after  ces- 
sion, ^  r>  o. 
VII.     Colonies  becoming  independent  retain  their  boundaries  and  other 

RIGHTS,  ^  6 

Vlir.  Title  of  de  facto  government  to  obedience,  §  7. 

IX.  Law  of  nations  p.\ut  of  law  of  land,  §  8. 

X.  Municipal  laws  not  extra  territorial,  ^  9. 

XL.  Distinctive  rule  as  to  taxes,  ^S  10. 

XII.  Distinctions  as  to  federal  constitution,  §  11. 

XIII.  Territory  as  a  rule  inviolable. 

(1)  Geueral  principles,  ^  lla. 

(2)  Recruiting  in  foreign  State  forbidden,  §  12. 

(3)  Permission  requisite  for  passage  of  foreign  troops,  §  13. 

(4)  And  so  of  foreign  seizure  of  persons  or  property,  §  14. 
(.'>)  And  so  of  foreign  jurisdiction  of  crime,  §  15. 

(6)  And  so  of  foreign  sending  of  paupers  and  criminals,  ^  16. 

XIV.  Exception  as  to  necessity,  ^  17. 

XV.     Exception  as  to  foreign  sovereigns,  foreign  ministers,   and  foreign 

troops,  ji  17a. 
XVI.     Exception  as  to  uncivilized  lands,  $  176. 

XVII.  Duty  of  sovereign  to  restrain  agencies  likely  to  injure  another 

country. 

(1)  Predatory  Indians,  $  18.  , 

(2)  Olher  marauders,  ^  19. 

(3)  Diversion  or  obstruction  of  water,  $  20. 

XVIII.  When  har.m  is  done  by  order  op  foreigv  sovereign  such  sovereign  is 

the  accountable  party,  §  21. 
XIX.    Territorial  boundaries  determined  by  political,  not  judicial  action, 
§  22. 

CHAPTER  II. 
sovereignty  over  water 

I.     High  seas:  sovereignty  over,  5  26. 
II.     Territorial  waters  :  privileges  of,  $  27. 
III.     Bays,  $  28. 

XXI 


ANALYSIS. 

IV.  Stkaits,  §  29. 

V.  EiVERs,  ^  30. 

VI.  Lakes  and  inland  seas,  »i  :iL 

VII.  Marginal  belt  of  sea,  $  32. 

VIII.  Ship  nationalized  by  flag,  ij  33. 

IX.  Crimes  at  sea  subject  to  country  of  flag,  $  33a. 

X.  Ports  open  to  all  nations,  ^  34. 

XI.  Merchant  vessels  subject  to  police  law  of  port,  $  35. 

XII.  Crimes  on  such  vessels,  how  far  subject  to  port  laws,  $  35a. 

XIII.  Not  so  as  to  public  ships,  ^  36. 

XIV.  Oppressive  port  exactions,  ^  37. 

XV.    Exemptions  from  stress  of  weather  :  vis  major,  or  inadvertence,  ^  38. 
XVI.    Arming  merchant  vessels,  §  39. 
XVII.    Neutralized  waters,  q  40. 

CHAPTER  III. 

intervention  with  foreign  sovereignties. 

I.     General  rule  is  non-intervention,  $  45. 
II.    Exceptions. 

(1)  Relief  aud  protection  of  eitizeus  abroad,  §  46. 

(2)  Agencies  to  obtain  information  as  to  pending  insurrection,  §  47. 

(3)  Sympathy  with  liberal  political  struggles,  ^  47a. 

(4)  Hospitality  to  political  refugees,  5  48. 

(5)  Mediation,  $  49. 

(6)  Necessity,  as  where  marauders  can  be  checked  only  by  such  intervention, 

$  50. 
(a)  Amelia  Island,  §  50a. 
(h)  Pensacola  and  Florida  posts,  $  50&. 

(c)  Steamboat  Caroline,  ^  .50c. 

(d)  Greytown,  S  bOd. 

(e)  Border  raiders,  §  50e. 

(7)  Explora'^ioDS  in  barbarous  lands  {e.g  .  the  Congo),  §  51. 

(8)  Intercession  in  extreme  cases  of  political  offenders,  $  52. 

(9)  International  courts  in  semi-civilized  or  barbarous  lands,  $  53. 
(10)  Good  offices  for  missionaries  abroad,  §  54. 

(H)  Good  offices  for  persecuted  Jews,  §  55. 

(12)  Non-prohibition  of  publications  or  subscriptions  in  aid  of  political  action 

abroad,  §  56. 

(13)  Chavitable  contributions  abroad,  56a. 

III.  Intervention  of  European  sovereigns  in  affairs  of  this  continent  dis- 

approved—Monroe doctrine,  $  57. 

IV.  Special  applications  of  doctrine. 

(1)  Mexico,  §  .58. 

(2)  Peru,  $  59. 

(3)  Cuba,  $  60. 

(4)  San  Dom"ngo  and  Hayti,  §  61. 

(5)  Danish  West  Indies,  §  61a. 

(6)  Hawaii:  (Sandwich  Islands),  $  62. 

(7)  Samoa,  Caroline,  aud  other  Pacific  Islands,  $  63. 

(8)  Corea,  §  64. 

(9)  Falkland  Islands,  §  65. 

(10)  Liberia,  $  66. 

(11)  China,  $  67. 

(12)  Japan,  $  68. 

(13)  Turkey,  Tripoli,  aud  Tunis,  $  68  a. 

XXII 


ANALYSIS. 

V.    Recognitiox  of  belligerkncy,  ij  G9. 
VI.    Recogxition  of  sovereignty,  $  70. 
VII.    Such  recogxition  determinable  by  executive,  $  71. 
VIII.     Accretion,   not  colonization,  the   policy   of  the  United  States, 
j7v!. 

(Questions  relative  to  the  Isthmus  of  Panama  are  cousideredin/ra,  $287^.) 
CHAPTER  IV. 

DIPLOMATIC   AGENTS. 


I.    Executive  the  source  of  diplomatic  authority,  $  78. 
II.     Foreign  ministers  to  recognize  the  secretary  of  state  as  the 

SOLE   ORGAN   OF  THE   EXECUTIVE,    §    79. 

III.  Continuity  of  foreign  relations  not  broken  by  party  changes, 

^  riO. 

IV.  Executive   discretion  determines  the  withdrawal  or  renewal 

of  missions  and  ministers,  $  81. 

V.  Non-acceptable  minister  may  be  refused,  §  82. 

VI.     Not  usual  to  ask  as  to  acceptability  in  advance,  §  82a. 
VII.    Conditions  derogatory  to  the  accrediting  government  cannot  be 

IMPOSED,    ij    8.5. 

VIII.     Minister  misconducting  himself  may  be  sent  back,  $  84. 
IX.     Mode  of  presentation  and  taking  leave,  §  8'). 
X.     Incumbent  continues  until  arrival  of  successor,  §  86. 

XI.      How   FAR    DOMESTIC    CHANGE    OF    GOVERNMENT    OPERATES    TO     RECALL, 

^  87. 
XII.    Diplomatic  grades,  ^  88. 

XIII.  Citizens  of  country  of  reception  not  acceptable,  §  88a. 

XIV.  Diplomatic  correspondence  confidential  except  by  order  of  de- 

partment, §  89. 

(1)  Confined  to  official  business,  '^  89a. 

(2)  Usnally  in  writing,  $  89&. 

XV.    Diplomatic  agents  to  act  under  instructions,  $  90. 
XVI.     Communications  from  foreigners  only   to   be   received   through 
diplomatic  representatives,  §  91. 

XVII.  Diplomatic  agents  protected  from  process. 

(1)  Who  are  so  privileged,  ^  92. 

(2)  Illegality  of  i^roeess  against,  ji  9.3. 

(3)  Exemption  from  criminal  prosecution,  $  93a. 

(4)  What  attack  on  a  minister  is  an  international  offence,  $  93b. 

XVIII.  And  from  personal  indignity,  $  94. 
XIX.    And  from  taxes  and  imposts,  ij  9i. 

XX.  Property  protected,  $  96. 

XXI.  Free  transit  and  communication  with,  secured,  $  97. 

XXII.  Privileged  from  testifying,  §  98. 

XX II I.  Cannot  become  business  agents,  \\  99. 

XXIV.  Nor  represent  foreign  governments,  ^  100. 
XXV.  Should  reside  at  capital,  ^  101. 

XXVI.    Joint  action  with  other  diplomatic  agents  uxadvisable,  $  102. 
XXVII.     Duties  as  to  archives,  §  103. 
XXVIII.     Right  of  protection  and  asylum,  v^  104. 

XXIX.      M  VY   EXTEND  protection   TO   CITIZENS   OP   FRIENDLY   COUNTRIES,  V^    105. 

XXX.    Avoidance  of  political  interference  enjoined,  $  106. 

XXIII 


ANALYSIS. 

XXXI.    Courtesy,  fair.vkss,  and  sociai,  conformity  kxpected. 

(1)  Official  intercourse,  $   107. 

(2)  Social  iuterconrse,  §  107a. 

(3)  Court  dress,  §  107b. 

(4)  Expenses,  $  107c. 

XXXII.    Contingent  fund  and  secret  service  money.  ^  108. 

XXXIII.  Self -constituted  missions  illegal.  \S  lO'J. 

XXXIV.  Presents  not  allowed,  §  110. 

CHAPTER  V. 

CONSULS. 

I.  Eligibility  of,  $  113. 

II.  Appointment  and  qualifying  of,  §  114. 

III.  Exequatur,  §  115. 

IV.  Dismissal,  $  116. 

V.  Not  ordinarily  diplomatic  agents,  §  117. 

VI.  Vice-consuls  and  consular  agents,  $  118. 

VII.  Not  to  take  part  in  politics,  $  lit). 

VIII.  Privilege  as  to  process,  §  liJO. 

IX.  Other  privileges,  §  t2l. 

X.  Right  to  give  asylum  and  protection,  vS  122. 

XI.  Business  relations  of,  ^  123. 

XII.  Port  jurisdiction  of  seamen  and  shipping,  ^  124. 

XIII.  Judicial  functions  in  semi-civilized  lands,  §  125. 

CHAPTER  VI. 

treaties. 
I.    Negotiation,  $  130. 
II.    Ratification  and  approval. 

(1)  As  to  treaty  making  power,  §  131. 

(2)  As  to  legislation,  $  131«. 

III.  When  treaty  goes  into  effect,  ^  132. 

IV.  Construction  and  interpretation,  vS  133. 

V.  "Favored  nation,''  ^  134. 

VI.     Subsequent  war  :  effect  ok,  ^  135. 
VII.     Subsequent  annexation:   effect  of,  ^S  13(5. 
Vllt.     Subsequent  revolution:  effect  of.  v>  137. 
IX.    Abrogation  by  consent,  by   repudiation,  or   by  change   of    circum- 
stances, ^  137a. 
X.    Treaties  when  constitutional  are  the  supreme  law  of  the  land,  but 

MAY  be  municipally  MODIFIED  BY  SUBSEQUENT  LEGISLATION,  §  138. 

XI.    Judiciary  cannot  control  executive  in  treaty  makikg,  $  139. 
XII.     Special  treaties. 

(1)  Argentine  Republic,  ^  140. 

(2)  Austria-Hungary,  §  141. 

(3)  Barbary  Powers,  §  141a. 

(4)  Bavaria,  §  142. 

(5)  Brazil,  ^  143. 
(fi)  China,  ^  144. 

(7)  Colombia  and  New  Granada,  §  145. 

(8)  Costa  Rica  and  Houdiinis,  §  146. 

(9)  Denmark,  v^  147. 
(10)  France. 

(a)  Treaty  of  177H,  $  14H. 

(b)  Convention  of  1800-1,  $  148rt. 

(c)  Treaty  of  1803  (cession  of  Louisiana).  4  1486. 

(d)  Subsequent  treaties,  ^  148c. 
XXIV 


ANALYSIS. 

XII.    Special  treatiks — Continned. 

(11)  Germ.auy,  §  149. 

(12)  Great  Britain. 

(a)  Treaty  of  1783  (Peace),  §  150. 
(ft)  Jay's  treaty  (1794),  §  150a. 

(c)  Monroe-Piiiknoy  and  cognate  negotiations,  $  1506. 

(d)  Treaty  of  Ghent  (IH14),  §  150c. 

(e)  Conventions  of  1815,  1818,  ^  150cl 

(f)  Asbburton  treaty  (1842),  $  1.50e. 

(fif)  Clayton-Bulwer  treaty  (1850),  $  150/. 

(ft)  Treaty  of  Washington  (1871)  and  Geneva  tribunal,  $  150^. 

(13)  Hanseatic  Republic,  $  151. 

(14)  Hawaii,  §  151a. 

(15)  Italy,  $  152. 

(16)  Japan,  §  153. 

(17)  Mexico,  §  154. 

(18)  Netherlands,  §  155. 

(19)  Paraguay,  $  156. 

(20)  Peru,  §  157.  •      . 

(21)  Portugal,  §  158. 

(22)  Eussia,  §  159. 

(23)  Sardinia,  $  160. 

(24)  Spain. 

(a)  Treaty  of  1795,  $  161. 

(ft)  Florida  negotiations  and  treaty  of  1816-20,  §  161a. 

(25)  Sweden  and  Norway,  §  162. 

(26)  Switzerland,  §  163. 

(27)  Tripoli,  ^  164. 
(28;  Turkey,  §  165. 

(29)  Venezuela,  §  165a. 

(30)  Wurtemberg,  $  166. 

CHAPTER  VII. 

CITIZENSHIP,    NATURALIZATION,    AND   ALIENAGE. 

I.    Expatriation. 

(1)  Principle  of  expatriation  affirmed,  ^  171. 

(2)  Conditions  imposed  by  Government  of  origin  have  no  extra-territorial 

■force,  §  172. 

(3)  Nor  can  the  rights  of  foreigners  be  limited  by  country  of  temporary 

residence  requiring  matriculation  or  registry,  $  172a. 
II.    Naturalization. 

(1)  Principles  and  limits  of,  §  173. 

(2)  Process  and  proof,  §  174. 

(3)  Judgment  of,  cannot  be  impeached  collaterally,  but  if  fi'audulent  tiaay 

be  repudiated  by  Government,  $  174a. 

(4)  Mere  declaration  of  intention  insufficient,  $  175. 
III.    Abandonment  of  citizenship. 

(1)  Citizenship  may  be  so  forfeited,  §  176. 

(2)  Or  by  naturalization  in  another  country,  $  177. 

(3)  Effect  of  treaty  limitations,  §  178. 

(4)  Under  treaty  with  Germany,  two  years'  residence  in  Germany  jprinw 

facie  proof  of  ab- ndonment,  §  179. 

•  *  XXV 


ANALYSIS. 

IV.    Liabilities  of  naturalized  citizen  on  returning  to  native  lajs^d. 

(1)  While  voluntary  expatriatiou  i.s  no  ground  for  adverse  proceedinga  it 

is  otherwiso  as  to  acts  done  by  liiui  before  expatriation,  §  IRO. 

(2)  If  be  left  military  duty  due  and  unperformed,  be  may  be  beld  to  it  if 

be  return  after  naturalization,  §  181. 

(3)  But  no  liability  for  subsequent  duty.  $  182. 
V.    Children. 

(1)  Born  in  the  United  States  generally  citizens,  §  183. 

(2)  So  of  cbildren  of  naturalized  citizens,  §  184. 

(3)  So  of  cbildren  boru  abroad  to  citizens  of  tbe  United  States,  $  185. 
VI.    Married  women. 

A  married  woman  partakes  of  ber  busband's  nationality,  $  186. 
VII.    Territorial  change. 

(1)  Allegiance  follows,  ^  187. 

(2)  Naturalization  by  revolution  or  treaty,  $  188. 
VIII.     Protection  of  government. 

(1)  Granted  to  citizens  abroad,  §  189. 

(2)  Eigbt  may  be  forfeited  by  abandonment  of  citizenship,  $  190. 

(3)  Care  of  destitute  citizens  abroad  not  assumed,  ^  190a. 
IX.    Passports. 

(1)  Can  only  be  issued  by  Secretary  of  State  or  bead  of  legation,  §  191, 

(2)  Only  to  citizens,  §  192. 

(3)  Qualified  passports  and  protection  papers,  $  193. 

(4)  Visas,  and  limitations  as  to  time,  $  194. 

(5)  How  to  be  supported,  §  195. 

(As  to  sea  letters,  see  j^^  408^.) 
X.    Indians  and  Chinese. 

(1)  Indians,  §  196. 

(2)  Chinese,  6  197. 
XI.      DOMICIL. 

(1)  May  give  rights  and  impose  duties,  $  198. 

(2)  Obtaining  and  proof  of,  §  199. 

(3)  Eifect  of,  S  200. 
XII.    Aliens. 

(1)  Rights  of,  ^  201. 

(2)  Not  compellable  to  military  service,  §  202. 

(3)  Subject  to  local  allegiance,  $  203. 

(4)  And  so  to  taxation,  ^  204. 

(5)  When  local  or  jiersonal  sovereign  liable  for,  $  205. 

(6)  May  be  expelled  or  rejected  by  local  sovereign,  §  206. 
XIII.    Corporations. 

Foreign  corporations  presumed  to  be  aliens,  ^  207. 

CHAPTER  VIII. 

north  AMERICAN  INDIANS. 

I.    Jurisdiction  and  title. 

(1)  Are  domestic  dependent  nations,  §  208. 

(2)  Cannot  transmit  title,  §  209. 
II.    Treaties  with. 

(1)  Must  be  duly  solemnized,  $  210. 

(2)  Liberally  construed,  §  211. 

XXVI 


ANALYSIS. 
CHAPTER  IX. 

CLAIMS. 

I.    Mode  of  presentation. 

(1)  Home  claimant  must  make  out  his  case  to  the  Department  by  affidavit 

or  otlior  proof,  §  2i:J. 

(2)  Foreign  claimaut  must  appear  through  diplomatic  agency,  §  214. 
II.     Who  may  claim. 

(1)  United  States  citizenship  must  be  shown  to  sustain  claim,  and  such 

citizenship  must  have  existed  vrhen  the  claim  accrued,  $  215. 

(2)  A  citizen  who  has  voluntarily  expatriated  him  elf  cannot  claim  the 

interposition  of  the  Department,  §  216. 

(3)  Corporations,  $  217. 

III.  Practice  as  to  proof  and  process. 

(1)  Department  cannot  examine  witnesses  under  oath,  $  218. 

(2)  No  peremptory  demand  to  be  made  unless  under  instructions  from 

Department,  $  219. 

(3)  Department  has  control  of  case,  and  may  arbitrate,  compromise,  or 

withdraw,  §  220. 

(4)  Arbitration  proper  when  Governments  disagree  ;  limits  of  arbitration, 

^  221. 
(.'j)  Government  may  resort  to  extreme  measures  to  enforce  payment,  ^ 
222. 

IV.  Claims  based  on  war. 

(1)  A  sovereign  is  not  ordinarily  responsible  to  alien  residentsfor  injuries 

they  receive  on  his  territory  from  belligerent  action,  or  from  insur- 
gents whom  he  could  not  control,  or  whom  the  claimant  Govern- 
ment had  recognized  as  bellig^rent,  ^  223. 

(2)  Nor  for  injuries  from  acts  of  legitimate  warfare  waged  by  him  on  his 

enemy's  soil,  §  224. 

(3)  Greytown  bombardment,  ^S  224a. 

(4)  But  belligerent  is  liable  for  injuries  inflicted  in  violation  of  rules  of 

civilized  warfare,  §  22.5. 

V.  Claims  based  on  mob  injuries. 

A  government  is  liable  internationally  for  such  injuries  when  it  could 
have  prevented  them  ;  but  when  there  is  a  remedy  given   in  the 
judicial  tribunals,  this  must  be  pursued,  ^  226. 
VI.     Claims  based  on  spoliation. 

(1)  Foreign  neutrals  liable  for  breach  of  neutrality,  §  227. 

(2)  Foreign  belligerents  liable  for  abuse  of  belligerency,  ^  228. 

(3)  How  far  public  ships  are  liable  for  torts,  $  229. 

VII.    Claims  baskd  on  denial  or  undue  discrimination  of  justice. 

(1)  Such  claims  ground  for  interposition,  §  230. 

(2)  But  not  mere  national  peculiarities  in  administering  justice  not  vio- 

lating international  oldigations,  ^  230a. 
VIII.     Contractual  claims. 

(1)  Not  ordinarily  pressed,  $  231. 

(2)  Exception  where  diplomacy  is  the  only  mode  of  redress,  §  232. 

(3)  Tender  of  good  offices,  §  233. 
IX.     Claims  for  real  estate. 

(1)  Title  to  be  bued  for  at  situs,  ^  234. 

(2)  Otherwise  as  to  trespasses  and  evictions,  §  23.5. 
X.     Claims  based  on  negligence,  §  23r)«. 

XI.     Liability  for  prior  Government. 

Governments  liable  for  predecessors'  spoliations,  ^  236. 

XXVII 


ANALYSIS. 

XII.     Defences. 

(1)  Part  payment,  $237. 

(<J)  Ha  pendens,  election  of  another  tribunal,  res  adjudicata,  §  238. 

(3)  Limitation,  $  239. 

(4)  Intermediate  war  or  settlement,  §  240. 

(5)  Non-exhaustion  of  local  judicial  remedies,  ^  241. 

(fi)  But  this  does  not  apply  where  there  is  no  local  judiciary,  or  wliere  the 
judicial  action  is  in  violation  of  international  law,  or  where  the  test 
is  waived,  or  wliere  thei"e  is  undue  discrimination,  S  242. 

(7)  Culpability  of  claimant,  §  243. 

(8)  No  national  discrimination  as  to  claimant,  $  244. 

XIII.  Pkactice  as  to  paymkn't,  ^  245. 

XIV.  Intekest. 

Nor  generally  allowable,  ^  246. 
XV.     Damages. 

Remote,  not  allowable,  ^  247. 
XVI.     Home  Government's  liability  for  abandoning  claim,  §248. 
XVII.    Foreign  sovereigns  may  sue  in  Federal  courts,  §  249. 

CHAPTER  X. 

.marriage. 

I.    Mode  of  solemnization. 

(1)  At  common  law,  consensual  marriage  valid,  §  260. 

(2)  Solemnization  valid  at  place  of  marriage  is  valid  everywhere,  §  261. 

(3)  Local  prescriptions  as  to  form  liave  no  extra- territorial  force,  §  262. 
II.    Matrimonial  capacity. 

Determined  by  national  policy,  vS  263. 


CHAPTER  XI. 

extradition. 

I.  Ordinarily  no  extradition  without  treaty,  o  268. 

II.  Demand  confined  to  treaty  offences,  $  269. 

III.  Trial  to  be  only  for  offences  enumerated  in  treaty,  $  270. 

IV.  Crime  must  have  been  ■svithix  jurisdiction  of  demanding  State. 

(1)  On  laud,  §  271. 

(2)  On  ship-board,  ^  27l«. 

V.     No  extradition  for  political  offences,  ij  272. 
VI.     No  defence  that  defendant  is  citizen  of  asylum  State,  §  273. 
VII.    Must  be  specific  foreign  de.mand,  (j  274. 
VIII.     State  governments  cannot  extradite,  ^n  275. 
IX.    Practice  as  to  arrest. 

(1)  Preliminary  executive  mandate,  ^  276. 

(2)  Form  of  complaint  and  warrant,  ^  276o. 

(3)  Mode  of  arresting  and  detention,  §  2766. 

X.  Evidence  on  which  process  will  be  granted,  §  277. 

XI.  Practice  as  to  review,  §  278. 

XII.  Practice  as  to  habeas  corpus,  §  279. 

XIII.  Practice  as  to  surrender,  §  280. 

XIV.  Expenses,  §  281. 

XV.    Treaties  retrospective,  §  282. 

XXVIII 


ANALYSIS. 
CHAPTER  XII. 

ISTHMUS   OF   PANAMA, 

I.    Transit  over  by  international  law. 

Such  transit  cannot  rightfully  1)b  closed,  §  287. 
II.     Transit  over  by  treaty  with  New  Granada. 

(1)  Limitations  of  treaty,  ^  288. 

(2)  Continuance  of,  §  2^9. 

III.  Effect  of  guarantee  of  under  treaty. 

(1)  Such  guarantee  binds  Colombia,  $  290. 

(2)  Does  not  guarantee  against  changes  of  government,  §  291. 

IV.  Relations  to  particular  countries. 

(1)  Colombia,  $  292. 

(2)  Nicaragua,  $  293. 

(3)  Costa  Rica,  §  294. 

(4)  The  Mosquito  Country  and  Belize,  §  295. 

(5)  Honduras,  $  296. 
((■))  Venezuela,  ^  29?. 

CHAPTER  XIII. 

FISHERIKS 

I.    Law  of  nations. 

(1)  Fishing  on  high  seas  open  to  all,  $  300. 

(2)  Sovereign  of  shore  has  jurisdiction  of  three-mile  marine  belt  following  the 

sinuosities  and  indentations  of  the  coast. 
II.    Northeast  Atlantic  fisheries. 

(1)  These  were  conquered  from  France  by  the  New  England  colonies,  acting 

in  co-operation  with  Great  Britain,  with  whom  they  were  afterwards 
held  in  common  by  such  colonics,  $  301. 

(2)  Treaty  of  peace  (1783)  was  not  a  grant  of  independence,  but  was  a  parti- 

tion of  the  empire,  the  United  States  retaining  a  common  share  in  the 
fisheries,  §  302. 

(3)  War  of  1812  did  not  divest  the.se  rights,  $  303. 

(4)  Treaty  of  1818  recognized  their  existence  and  affirmed  their  continuance, 

$  304. 

(5)  Under  these  treaties  the  three-miles  belt  follows  the  sinuosities  and  in- 

dentations of  the  coast,  §  305. 

(6)  Bay  of  Fundy  and  other  large  bays  are  open  seas,  §  305a. 

(7)  Ports  of  entry  are  not  affected  by  limitations  imposed  by  treaty  of  1818, 

^  306. 

(8)  British  municipal  legislation  may  restrict,  but  cannot  expand,  British 

rights  under  these  treaties,  $  307. 

(9)  Great  Britain,  and  not  her  provinces,  is  the  sovereign  to  be  dealt  with  for 

infraction  of  such  fishing  rights,  §  308. 

CHAPTER  XIV. 

guano  islands. 

I.    Title  in  international  law. 
Based  on  discovery,  9  310. 
II.    Title  under  United  States  statute. 

(1)  Discovery  of  guano  deposits  gives  title,  $  311. 

(2)  Aves  Islands,  §  312. 

(3)  Lobos  Islands,  §  313. 

(4)  Other  islands,  $  314. 

XXIX 


ANALYSIS. 
CHAPTEK  XV. 

PACIFIC   METHODS   OK   HEDRESS. 

I.  Apology,  uepakatiox,  satisfaction,  and  indemnity. 

(1)  Apology  and  saluting  tlag,  ivS  ;U."). 

(2)  Cession  of  territory,  *  iUort. 

('.i)  Case  of  Chesapeake  and  Lenpard,  ^  315b. 

(4)  Case  of  Dartmoor  prisoners.  ^  315c. 

(5)  Case  of  Prometheus,  v^  3l.5d. 

II.  Arbitkatiox,  $  316. 

III.  Withdrawal  of  diplo.matic  relations,  §  317. 

IV.  Retorsion  and  reprisal,  ^  31P. 

V.  Non-intercourse,  §.  319. 

VI.  Embargo,  §  320. 

VII.  Display  of  force,  Oi  321. 

CHAPTEK  XVI. 

visit,  search,  capture,  and  impressment. 

i.    as  a  belligerent  right. 

Visit  in  such  cases  permitted,  ^^  325. 
TI.     In  casks  of  piracy. 

On  iirobable  cause  papers  may  be  demanded,  §  32fi 

III.  Visit  no  longer  permitted  in  peace,  $  327. 

IV.  Action  of  prize  court  may  be  essential,  $  328. 

V.    When  having  jurisdiction  such  court  may  conclude,  §  329. 

VI.  But  not  when  not  in  conformity  with  international  law,  $  329«. 
VII.    Proceedings  of  such  court,  ^  330. 

VIII.  Impressment. 

Its  history  and  abandonment,  v^  331. 

CHAPTER  XVII. 

WAR. 

I.    Conditions  and  declaration  of. 

(1)  May  be  limited  and  conditioned,  §  333. 

(2)  Declaration  may  be  formally  necessary,  $  334. 

(3)  But  not  practically  essential,  §  335. 

II.  Effect  of  as  to  civil  rights. 

(1)  Abrogates  treaties,  $  336. 

(2)  Breaks  up  business  and  suspends  contracts,  §  337. 

(3)  But  not  truces,  $  337a. 

III.     Application  of  to  enemy's  property. 

(1)  Private  property  on  land  not  usually  subject  to  enemy's  seii^ure,  $  338. 

(2)  Contributions  may  be  imposed,  §  339. 

(3)  State  moveable  property  may  be  seized,  §  310. 

(4)  So  of  property  in  enemies'  territorial  waters,  ^  341. 

(5)  Liability  to  seizure  of  enemy's  private  property  on  high  seas  under 

neutral  flag,  $  342. 

(6)  Liability  of  neatral  property  under  enemy's  tlag,  J  343. 

(7)  Exceptions  as  to  rule  of  seizure  of  enemy's  property  at  sea,  $  344. 

(8)  What  is  a  lawful  capture  of  an  enemy's  merchant  ship,  §  345. 

(9)  When  convoys  protect,  $  346. 

XXX 


ANALYSIS. 

IV.     Rules  of  civilized  ware  auk  to  hk  obseuvkd 

(1)  Spies  aud  their  treatment,  ^  :>-47. 

(2)  Prisouers  and  their  treatment. 

(a)  General  rules,  §  348. 
(6)  Arbuthnot  and  Ambrister,  ^  348a. 
(c)  Reprisals  in   war  of  lbl2,  §  34sf&. 
((^  Dartmoor  prisoners,  \S  348c. 
(e)  Cases  in  Mexican  war,  <J  3iSd. 

(3)  Wanton  destrnction  irohibited,  ^  349. 

V.    Who  are  entitled  to  belligerent  rights. 

(1)  In  foreign  war  authorization  from  8over<^ign  generally  necessary,  §350^ 

(2)  Insurgents  are  belligerents  when  proceeded  against  by  open  war,  § 

351. 
VI.  When  enemy's  character  is  imputable  to  neutrals. 

(1)  When  residing  in  enemy's  jurisdiction,  ^  352. 

(2)  When  leaving  property  at  enemy's  disposal,  ^  353. 
VII.      ADMINISI  RATION  BY  CONQUEROR. 

(1)  As  to  courts,  $  354. 

(2)  As  to  executive,  $  355. 

VIII.    Ending  of  war. 

(1)  By  cessation  of  hostilities,  ^  356. 

(2)  By  treaty  of  peace,  §  357. 

CHAPTER  XVIII. 

BLOCKADE. 

I.    What  essential  to.  ^ 

(1)  Must  be  duly  instituted,  §  359. 

(2)  Must  be  notified  to  neutrals,  $  360.  0 

(3)  Must  be  eifective,  §  361. 

(4)  Obstructions  may  be  temporarily  placed  in  channel  of  access,  5  361a. 
II.    Enforcement  of. 

(1)  Vessels  seeking  evasion  of  may  be  seized,  ^  362. 

(2)  Must  be  brought  to  prize  court,  $  363. 

III.  Pacific  Blockade,  iJ  364. 

IV.  Duty  op  neutral  as  to  blockade  running,  §  365. 

CHAPTER  XIX. 

CONTRABAND. 

I.    Munitions  of  war  contraband,  ^  368. 

II.  And  whatever  is  essential  to  belligerent  support. 

(1)  As  to  coal,  §  369. 

(2)  As  to  provisions,  §  370. 

(3)  As  to  money,  §  371. 

(4)  As  to  horses,  $  372. 

(5)  As  to  merchandise,  §  373. 

(6)  As  to  soldiers,  §  373a. 

III.  How  far  dispatches  and  diplomatic  agents  are  contraband,  $  374. 

IV.  Penalties  on  contraband. 

May  be  seized  on  high  seas,  $  375. 

XXXI 


ANALYSIS. 
CHAPTER  XX. 

PIRACY   AND   PRIVATEEHING. 

I.    Definition  of  piracy. 

(1)  Must  be  robbery  on  the  high  seas,  $  3d0. 

(2)  Warlike  attacks  of  iusur<;ents  uot  piracy,  ^  381.      • 

II.     Municipal  definitions  not  extka-tkrritorial  ^  382. 
III.     Privateer.s. 

(1)  Who  are,  §  383. 

(2)  Not  pirates  by  law  of  nations,  $  384. 

(3)  Sustained  by  policy  of  the  United  States,  §  385. 

CHAPTER  XXI. 

neutrality. 

I.    Rights  of  neutral. 

(1)  May  trade  with  either  belligerent,  and  herein  as  to  trade  with  colonies 

not  open  in  peace,  $  388. 

(2)  May  permit  free  discussion  as  to  foreign  sovereigns,  §  389. 

(3)  May  permit  subjects  to  furuish  funds  or  supplies  to  belligerents,  $  390. 

(4)  Or  munitions  of  war,  ^  391. 

(5)  Or  to  enlist  in  service  of  belligerent,  $  392. 
(fi)  Or  to  sell  or  purchase  ships,  $  ;i93. 

(7)  Or  may  give  asylum  to  belligerent  ships  or  troops,  $  394. 
II.    Restrictions  of  neutral. 

(1)  Bound  to  restrain  enlistments  by  belligerent,  §  395. 

(2)  Or  issuing  of  armed  expeditions,  §  395a. 

•         (3)  Bound  to  restrain  fitting  out  of  and  sailing  of  armed  cruisers  of  bellig- 
erent, §  .396. 

(4)  Or  passage  of  belligerent's  troops  over  soil,  §  397. 

(5)  Bound  not  to  permit  territory  to  be  made  the  base  of  belligereut  opera- 

tions, $  398. 

(6)  Nor  to  permit  belligerent  naval  operations  in  territorial  waters,  ^  399. 

(7)  Nor  to  permit  sale  of  prize  in  ports,  ^  400. 

(8)  Bound  to  redress  damages  done  to  belligerent  by  its  conrivance  or  neg- 

ligence, $  401. 

III.  Degree  of  vigilance  to  be  exercised. 

(1)  Not  perfect  vigilance,  but  suchas  is  reasonable  underthe  (  irmmstances, 

§  402. 

(2)  Rules  of  1871,  and  Geiu-va  Tribunal,  9  402a. 

IV.  Municipal  statutes  not  extra-territorial,  o  403. 

V.    Persons  violating  municipal  statute  may  be  proceeded  against  munici- 
pally, $  404. 
VI.    Policy  of  the  United  States  is  maintenance  of  neutral  rights,  §  405. 

XXXII 


ANALYSIS. 


CHAPTER  XXII. 
ships'  papp)RS  and  sea-letters. 
I.    Vessels  carrying  the  flag  of  the  United  States  cannot,  in  time  of 

PEACE,  BE  ARRESTED  ON  THE  HIGH  SEAS,  EXCEPT  AT  THE  RISK  OF  THE  PARTY 
MAKING  THE  ARREST,  ^  408. 

II.     Ships'  papers  certifying,  under  the  authority  of  the  United  States, 

THAT  THE  VESSEL  HOLDING  THEM  IS  A  VESSEL  OF  THE  UNITED  STATES,  CAN- 
NOT BE  TESTED  AS  TO  ALLEGED  FRAUDULENCY  BY  FOREIGN  POWERS.  TlIE 
QUESTION   OF   THEIR   VALIDITY   IS   EXCLUSIVELY  FOR  THE   UNITED    STATES, 

$409. 
III.  Vessels  owned  by  citizens  of  the  United  States  may  carry  the  flag 
OF  THE  United  States  on  the  high  seas,  and  are  entitled  to  the  pro- 
tection of  the  United  States  Government,  though  from  being 
foreign  built,  or  from  other  causes,  they  are  not  and  cannot  be 
registered  as  vessels  op  the  united  states,  §  410. 

cnArTEiv*  XXIII. 

letters  rogatory. 

Practice  as  to  such  letters,  $  413. 

XXXIII 


ERRATA. 

Page  491,  at  end  of  I  67,  for  "Mr.  Bayard  to  Mr.  Morrison" 
read  "Mr.  Bayard  to  Mr.  Morrow ^ 

Bage  632,  1st  line  in  I  89a,  for  "most"  read  "moot." 

Bage  703,  19th  line,  for  "  Frenehmen"  read  "  Fix^nchman:'- 

Bage  716,  IJftli  line  from  bottom,  for  "Mrs.''  read  "Miss"  Austen. 

Bage  736,  3d  line  of  4th  paragrajdi,  for  "  Torif  read  "  Troy." 


ANALYSIS. 
CHAPTER  XX. 

PIRACY   AND   PRIVATEEinNG. 

I.    Definition  of  piracy. 

(1)  Must  be  robbery  on  the  high  seas,  $  iWO. 

(2)  Warlike  attacks  of  lusurgents  uot  piracy,  ^  381.      • 
II.     Municipal  definitions  not  extka-territoeial  $  382. 

III.     Privateer.s. 

(1)  Who  are,  $  383. 

(2)  Not  pirates  by  law  of  nations,  ^  384. 

(3)  Sustained  by  policy  of  the  United  States,  §  385. 

CHAPTER  XXI. 

neutrality. 

I.    Rights  of  neutral. 

(1)  May  trade  with  either  belligerent,  and  herein  as  to  trade  with  colonies 

uot  open  in  iJeace,  §  388. 

(2)  May  permit  free  discussion  as  to  foreign  sovereigns,  §  389. 

(3)  May  permit  subjects  to  furnish  funds  or  supplies  to  belligerents,  $  390. 

(4)  Or  munitions  of  war,  ^  391. 

(5)  Or  to  enlist  in  service  of  belligerent,  §  392. 
(fi)  Or  to  sell  or  purchase  ships,  §  ;}93. 

(7)  Or  may  give  asylum  to  belligerent  ships  or  troops,  $  394. 
II.     Restrictions  of  neutral. 

(1)  Bound  to  restrain  enlistments  by  belligerent,  §  395. 

(2)  Or  issuing  of  armed  expeditions,  $  395a. 

*        (3)  Bound  to  restrain  fitting  out  of  and  sailing  of  armed  cruisers  of  bellig- 


ANALYSIS. 


CHAPTER  XXII. 
ships'  papers  and  sea-letters. 
I.    Vessels  carrying  the  flag  of  the  United  States  cannot,  in  time  of 

PEACE,  BE  A1{RESTP:D  ON  THE  HIGH  SEAS,  EXCEPT  AT  THE  RISK  OF  THE  PARTY 
MAKING  THE  ARREST,  ^  408. 

II.     Ships'  papers  certifying,  under  the  authority  of  the  United  States, 

THAT  the  vessel  HOLDING  THEM  IS  A  VESSEL  OF  THE  UNITED  STATES,  CAN- 
NOT BE  TESTED  AS  TO  ALLEGED  FRAUDULENCY  BY  FOREIGN  POWERS.  ThE 
QUESTION   OF   THEIR   VALIDITY   IS   EXCLUSIVELY  FOR  THE   UNITED    STATES, 

$409. 
III.    Vessels  owned  by  citizens  of  the  United  States  may  carry  the  flag 
OF  THE  United  States  on  the  high  seas,  and  are  entitled  to  the  pro- 
tection OF  the  United  States  Government,   though   from    being 
foreign  built,  or  from  other  CAUSES,  they  are  not  and  cannot  be 

REGISTERED  AS  VESSELS  OF  THE  UNITED  STATES,  §  410. 

CIIAITEK'  XXIII. 

letters  rogatory. 

Practice  as  to  such  letters,  $  413. 

XXXIII 


CHAPTER  I. 


SOVEREIGNTY  OVER  LAND. 


I. 

II. 

III. 

IV. 

V. 
VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 


XlV. 
XV. 

XVI. 

XVII. 


XVIII. 
XIX. 


Territorial  sovereign  supreme,  §  1. 

Discovery  the  basis  of  title,  §  2. 

Conquered  territory  sub.ject  to  temporary  military  control,  §  '.i. 

Conquered,  annexed,  or  divided  territory  retains  its  prior  municipal 

institutions,  §  4. 
Benefits  and  burdens  pass  to  conquering  or  annexing  sovereign,  ^  5. 
But  such  country  not  affected  by  acts  of  prior  sovereign  after 

CESSION,  '3  5a. 
Colonies  becoming  independent  retain  their  boundaries  and  other 

RIGHTS,  §  6. 

Title  of  de  facto  government  to  obedience,  $  7. 
Law  of  nations  part  of  law  of  land,  §  8. 
Municipal  laws  not  extra-territorial,  $  9. 
Distinctive  rule  as  to  taxes,  §  10. 
Distinctions  as  to  federal  constitution,  ^  11. 
Territory  as  a  rule  inviolable. 

(1)  General  principles,  §  11a. 

(2)  Recruiting  in  foreign  State  forbidden,  §  12. 

(3)  Permission  requisite  for  passage  of  foreign  troops,  $  13. 

(4)  And  so  of  foreign  seizure  of  persons  or  property,  §  14. 

(5)  And  so  of  foreign  jurisdiction  of  crime,  §  15. 

(6)  And  so  of  foreign  sending  of  paupers  and  criminals,  $  16. 
Exception  as  to  necessity,  ^  17. 

Exception  as  to  foreign  sovereigns,  foreign  ministers,  and  foreign 

troops,  §  17a. 
Exception  as  to  uncivilized  lands,  §  176. 
Duty  of  sovereign  to  restrain  agencies  likely  to  injure  another 

COUNTRY. 

(1)  Predatory  Indians,  §  18. 

(2)  Other  marauders,  §  19. 

(.3)  Diversion  or  obstruction  of  water,  §  20. 
When  harm  is  done  by  order  of  foreign  sovereign  such  sovereign 

is  the  accountable  party,  $21. 
Territorial  boundaries  determined  by  political,  not  judicial,  action, 
$  22. 


I.  TEBBITOBIAL  SOVEREIGN  SUPREME. 

§   1. 

The  authority  of  a  nation  within  its  own  territory  is  absolute  and  ex- 
clusive. 

Church  V.  Hubbart,  2  Cranch,  187,  234.     (See  more  fully  ivfra,  §  9.) 

Any  restriction  upon  this  sovereignty,  when  such  restriction  comes 
from  a  foreign  power,  implies  a  transfer  ^ro  tanto  of  such  sovereignty 

1 


§  1.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

to  such  power.  "This  full  aud  absolute  territorial  jurisdiction  being 
alike  the  attribute  of  every  sovereign,  and  being  incapable  of  conferring 
extraterritorial  power,  would  not  seem  to  contemplate  foreign  sover- 
eigns nor  their  sovereign  rights  as  its  objects.  One  sovereign  being  in 
no  respect  amenable  to  another,  .and  being  bound  by  obligations  of  the 
highest  character  not  to  degrade  the  dignity  of  his  nation  by  placing 
himself  or  its  sovereign  rights  within  the  jurisdiction  of  another,  can  be 
supposed  to  enter  a  foreign  territory  only  under  an  express  license,  or 
in  the  confidence  that  the  immunities  belonging  to  his  independent 
sovereign  station,  though  not  expressly  stipulated,  are  reserved  by  im- 
plication, and  will  be  extended  to  him," 

Marshall,  C.  J.     Schooner  Excharge  v.  McFaddon,  7  Cranch,  137.     (See  infra,  $ 
17a.) 

A  foreign  power  cannot  of  right  institute  or  erect  any  court  of  judi- 
cature of  any  kind,  within  the  jurisdiction  of  the  United  States,  but 
such  only  as  may  be  warranted  by  and  be  in  pursuance  of  treaties. 
Hence  the  admiralty  jurisdiction,  which  has  been  exercised  in  the  United 
States  by  consuls  of  France,  not  being  so  warranted,  is  not  of  right. 

Glass  V.  Sloop  Betsey,  3  Dallas,  6. 

A  seizure  for  the  breach  of  the  municipal  laws  of  one  nation  cannot 
be  made  within  the  territory  of  another. 

The  Apolloa,  9  Wheaton,  362. 
It  belongs  to  sovereignties  to  fix  boundaries  between  their  respective 
jurisdictions ;  and  when  fixed  by  compact,  they  become  conclusive  |ipon 
their  citizens  and  bind  their  rights. 

Poole  V.  Fleeger,  11  Peters,  185.     (See  infra,  ^$9,  11a.) 

The  doctrine  of  the  unity  of  sovereignty  within  specific  territorial 
bounds,  and  of  homogeueousness  of  institutions  and  laws  within  tbose 
bounds,  is  of  comparatively  recent  origin.  At  the  breaking  up  of  the 
Boman  Empire,  when,  within  the  territory  formerly  dominated  by  Eome, 
distinct  nationalities,  with  distinct  usages  aud  laws,  were  introduced,  it 
was  not  attempted  to  extend  over  races  so  diverse,  and  with  such  strongly 
variant  traditions,  i\  jurisprudence  which  would  apply  equally  to  all 
dwelling  within  the  same  territorial  limits.  Hence,  while  the  invading 
nations  wjio  settled  within  the  old  Roman  boundaries  retained  each 
their  own  usages  and  laws,  there  was  no  attempt  to  break  down  the 
usages  and  laws  by  which  the  Romans  were  personally  governed.  From 
this  sprang  up  the  system  of  what  is  called  "personal"  law;  i.  e.,  law 
which  derives  its  character  not  from  locality,  but  from  race.  In  mod- 
ern Europe  "  personal "  law  has  been  almost  entirely  superseded  by  "  ter- 
ritorial" law;  i.  e.,  law  imposed  by  the  sovereign  of  the  territory  upon 
all  who  occupy  it.  Few  exceptions  are  now  recognized  in  Europe.  The 
chief  of  these  are  those  which  in  certain  countries  impose  disabilities  on 
Jews.  {Infra,  §  55.)  In  the  United  States  we  have  a  remarkable  excep- 
tion, as  will  liereafter  be  more  fully  seen,  in  the  Indian  pace  (see  infra, 
§208).  The  members  of  that  race,  when  dispersed  in  the  general  poj)- 
ulation,  are  governed,  as  are  the  persons  about  them,  by  "territorial" 
law ;  1.  e.,  the  law  of  the  land  which  they  occupy.  When,  however,  they 
are  collected  in  tribal  reservations,  they  are  governed,  at  least  in  part, 
2 


CHAP.  I.]  TITLE    BY    DISCOVERY.  [§  2. 

by  the  law  of  their  tribe.  With  this  exceptiou,  all  persons  resident 
iu  the  United  States  are  equally  subject  to  the  law  of  the  particular  part 
of  the  country  in  which  they  reside.  But  this  "  territorial"  law  is  itself 
modified  by  the  following;  conditions: 

(1)  Persons  who,  though  residing  on  our  soil,  are  domiciled  in  another 
country,  are  subject,  so  far  as  concerns  personal  taxation,  legitimacy, 
and  the  distribution  of  their  personal  property  after  death,  to  the  law 
of  their  domicile,  and  not  to  the  law  of  their  temporary  residence.  Dom- 
icile, not  temporary  residence,  also  determines  the  jurisdiction  of  divorce 
proceedings.     [Inf.^  §  2iS^  jf.) 

(2)  The  law  that  determines  the  mode  of  solemnizing  marriage  is  that 
of  the  place  of  solemnization,     (iw/.,  §  2G0  ff.) 

(3)  "Territorials^  sovereignty,  while  absolute,  so  as  to  exclude,  except 
by  its  own  permission,  foreign  jurisprudences,  so  far  from  excluding  a 
distribution  of  power,  primarily  iu  the  people,  and  secondarily  in  sev- 
eral gradually  ascending  or  co-ordinate  departments  of  government,  is 
in  all  modern  civilized  countries  so  distributed.  This  is  eminently  so 
in  the  United  States.     {Infra,  §  11.) 

On  the  general  question  of  "territorial"  as  distinguished  from  "per- 
sonal" law  may  be  consulted  Maine's  Ancient  Law,  where  the  growth 
of  the  "territorial"  system  is  traced  at  large,  and  authorities  cited  in 
Whart.  Conf.  of  Laws,  §§  7,  8,  9,  84  J\ 


II.  DISCOVERY  THE  BASIS  OF  TITLE. 

§2. 

[This  topic  in  reference  to  transmission  of  Indian  titles,  is  discussed  infra  §  209 ;  as  to 
guano  islands,  infra  $  310.] 

"  On  the  discovery  of  this  immense  continent  the  great  nations  of  Europe 
were  eager  to  appropriate  to  themselves  so  much  of  it  as  they  could 
respectively  acquire.  *  *  *  But,  as  they  were  all  in  pursuit  of  nearly 
the  same  object,  it  was  necessary,  in  order  to  avoid  conflicting  settle- 
ments, and  consequent  war  with  each  other,  to  establish  a  principle 
which  all  should  acknowledge  as  the  law  by  which  the  right  of  acquisition, 
which  they  all  asserted,  should  be  regulated  as  between  themselves. 
This  principle  was,  that  discovery  gave  title  to  the  Government  by  whose 
subjects  or  by  whose  authority  it  was  made  against  all  other  European 
Governments,  which  title  might  be  consummated  by  possession.  The 
exclusion  of  all  other  Europeans  necessarily  gave  to  the  nation  making 
the  discovery  the  sole  right  of  acquiring  the  soil  from  the  natives,  and 
establishing  settlements  upon  it.  It  was  a  right  with  which  no  European 
could  interfere.  It  was  a  right  which  all  asserted  for  themselves,  and 
to  the  assertion  of  which  by  others  all  assented.  *  *  *  While  the  dif- 
ferent nations  of  Europe  respected  the  right  of  the  natives  as  occu- 
pants, they  asserted  the  ultimate  dominion  to  be  in  themselves,  and 
claimed  and  exercised  as  a  coijsequence  of  this  ultimate  dominion  a 
power  to  grant  the  soil  while  yet  in  possession  of  the  natives.  These 
grants  have  been  understood  by  all  to  convey  a  title  to  the  grantees, 
subject  only  to  the  Indian  right  of  occupancy." 

Marshall,  C.  J.,  Johnson  v.  Mcintosh,  8  Wheat.,  572  j^. 

3 


§  2.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

The  title  to  the  land  in  the  English-settled  colonies  in  this  country 
has  "been  granted  by  the  Crown  while  in  the  occupation  of  the  Indians. 
These  grants  purport  to  convey  the  soil  as  well  as  the  right  of  domin- 
ion to  the  grantees."  *  *  *  u  The  magnificent  purchase  of  Louisiana 
was  the  purchase  from  France  of  a  country  almost  entirely  occupied 
by  numerous  tribes  of  Indians  who  are,  in  fact,  independent.  Yet,  any 
attempt  of  others  to  intrude  into  that  country  would  be  considered  as 
an  aggression  which  would  justify  war.  Our  late  acquisitions  from 
Spain  are  of  the  same  character ;  and  the  negotiations  which  preceded 
those  acquisitions  recognize  and  elucidate  the  principle  which  has  been 
received  as  the  foundation  of  all  European  title  in  America.  The 
United  States,  then,  have  unequivocally  acceded  to  the  great  and  broad 
rule  by  which  its  civilized  inhabitants  now  hold  this  country.  They 
hold  and  assert  in  themselves  the  title  by  which  it  was  acquired.  They 
maintain,  as  all  others  have  maintained,  that  discovery  gave  an  exclu- 
sive right  to  extinguish  the  Indian  title  of  occupancy,  either  by  purchase 
or  bj'  conquest ;  and  gave  also  a  right  to  such  a  degree  of  sovereignty 
as  the  circumstances  of  the  people  would  allow  them  to  exercise.'' 
Hence  a  conveyance  of  title  to  lands  exclusively  derived  from  an  Indian 
tribe  northwest  of  the  Ohio  in  1773  and  1775  to  private  persons  conveys 
no  title.    ( 

Marshall,  C.  J.,  Johnson  v.  Mcintosh,  8  Wheat.,  543, 579. 587. 

The  rights  of  the  original  inhabitants  were  not  entirely  disregarded, 
but  were  necessarily,  to  a  considerable  extent,  impaired.  These  inhab- 
itants were  admitted  to  be  the  occupants  of  the  soil ;  but  their  rights  to 
complete  sovereignty,  as  independent  nations,  were  necessarily  dimin- 
ished, and  their  power  to  dispose  of  the  soil  at  their  own  will  was  denied 
by  the  original  fundamental  principle  that  discovery  gave  exclusive 
title  to  those  who  made  it. 

Johnson  i'.  Mcintosh,  8  Wheat.,  543. 

So  far  as  respects  the  Crown  to  whose  authority  the  States  succeeded, 
no,  distinction  was  taken  between  vacant  lands  and  lands  occupied  by 
the  Indians.  The  title,  subject  only  to  the  right  of  occupancy  by  the 
Indians,  was  admitted  to  be  in  the  King,  and  he  could  grant  the  lands 
away,  or  reserve  them  for  the  Indians. 

Ibid. :  see  United  States  v.  Fernandez,  10  Peters,  303. 
(See  in/m  209.) 

The  English  possessions  in  America  were  not  claimed  by  right  of  con- 
quest, but  of  discovery,  and  were  held  by  the  King,  as  the  representa- 
tive of  the  nation,  for  whose  benefit  the  discovery  was  made.  When 
the  revolution  took  i)lace,  the  people  of  each  State,  in  their  sovereign 
character,  acquired  the  absolute  right  to  all  their  navigable  waters,  and 
the  soil  with  them. 

The  grant  from  Charles  II  to  the  Duke  of  York,  of  the  territory  which 
4 


CHAP.  I.]  TITLE    BY   DISCOVERY.  [§  2. 

now  forms  the  State  of  New  Jersey,  passed  to  the  Duke  the  soil  under 
the  navigaWe  waters  as  one  of  the  royalties  incident  to  the  powers  of 
government,  which  were  also  granted,  to  be  held  by  him  in  the  same 
manner  and  for  the  same  purposes  as  this  soil  had  been  previously  held 
by  the  Crown,  and  the  same  is  true  of  the  grantees  of  the  Duke.  And 
when  these  grantees  surrendered  to  the  Crown  all  the  powers  of  gov- 
ernment, the  title  to  the  soil  passed  to  the  Crown,  and  at  the  Revolu- 
tion became  vested  in  the  State  of  New  Jersey. 

Martin  v.  Waddell,  16  Peters,  367. 

"  How  far  the  mere  discovery  of  a  territory  which  is  either  unsettled, 
or  settled  only  by  savages,  gives  a  right  to  it,  is  a  question  which  neither 
the  law  nor  the  usages  of  nations  has  yet  definitely  settled.  The  opin- 
ions of  mankind,  upon  this  point,  have  undergone  very  great  changes 
with  the  progress  of  knowledge  and  civilization.  Yet  it  will  scarcely 
be  denied  that  rights  acquired  by  the  general  consent  of  civilized  na- 
tions, even  under  the  erroneous  views  of  an  unenlightened  age,  are 
protected  against  the  changes  of  opinion  resulting  merely  from  the 
more  liberal,  or  the  more  just,  views  of  after  times.  The  right  of  na- 
tions to  countries  discovered  in  the  sixteenth  century  is  to  be  deter- 
mined by  the  law  of  nations  as  understood  at  that  time,  and  not  by  the 
improved  and  more  enlightened  opinion  of  three  centuries  later." 

Mr.  Upshur,  Sec.  of  State,   to  Mr.   Everett,  Oct.  9,   1843.     MSS.  Instruc.  Great 
Britain. 

"  The  ground  taken  by  the  British  Government,  that  a  discovery  made 
by  a  private  individual,  in  the  prosecution  of  a  private  enterprise,  gives 
no  right,  cannot  be  allowed.  There  is  nothing  to  support  it,  either  in 
the  reason  of  the  case  or  in  the  law  and  usage  of  nations.  To  say  the 
least  of  it,  if  a  discovery  so  made  confers  no  right,  it  prevents  any 
other  nation  from  acquiring  a  right  by  subsequent  discovery,  although 
made  under  the  authority  of  Government,  and  with  an  express  view  to 
that  object.  In  no  just  acceptation  of  the  term  can  a  country  be  said 
to  be  '  discovered,'  if  its  existence  has  been  previously  ascertained  by 
actual  sight.  This  is  a  mere  question  of  fact,  which  a  j^rivate  person 
can  settle  as  well  as  a  public  agent.  But  be  this  as  it  may,  Meares 
himself  was  but  the  agent  of  a  private  trading  company,  without  any 
authority  whatever  from  his  Government,  so  that,  in  this  respect,  his 
discovery  stands  upon  no  better  ground  than  that  of  Captain  Gray." 
Ihid. 

"  Now,  mere  lapse  of  time,  independent  of  legislation  or  positive 
agreement,  cannot  of  itself  either  give  or  destroy  title.  It  gives  title 
only  so  far  as  it  creates  a  presumi)tion,  equivalent  to  proof,  that  a  title 
exists,  derived  from  higher  sources:  it  destroys  title  only  because  it 
creates  a  like  presumption  that,  whatever  the  title  may  have  been,  it 
has  been  transferred  or  abandoned.    Thus  it  is  merely  evidence  and 

6 


§  8.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

notbing  more.    It  creates  a  presumption  equivalent  to  full  proof.    But 
it  differs  from  proof  in  this,  that  proof  is  conclusive  and  final,  whereas 
l)resnmi3tion  is  conclusive  only  until  it  is  met  by  counter-proof,  or  a 
stronger  counter-presumption." 
Ibid. 

"That  continuity  furnishes  a  just  foundation  for  a  claim  of  territory, 
in  connection  with  those  of  discovery  and  occupation,  would  seem  un- 
questionable. It  is  admitted  by  all,  that  neither  of  them  is  limited  by 
the  precise  spot  discovered  or  occupied.  It  is  evident  that,  in  order  to 
make  either  available,  it  must  extend  at  least  some  distance  beyond  that 
actually  discovered  or  occupied ;  but  how  far,  as  an  abstract  question, 
is  a  matter  of  uncertainty.  It  is  subject,  in  each  case,  to  be  influenced 
by  a  variety  of  considerations.  In  the  case  of  an  island,  it  has  been 
usually  maintained  in  practice,  to  extend  the  claim  of  discovery  or  occu- 
pancy to  the  whole ;  so  likewise  in  the  case  of  a  river,  it  has  been  usual 
to  extend  them  to  the  entire  region  drained  by  it,  more  especially  in  cases 
of  a  discovery  and  settlement  at  the  mouth ;  and  emphatically  so  when 
accompanied  by  exploration  of  the  river  and  region  through  which  it 
flows.  Such,  it  is  believed,  may  be  affirmed  to  be  the  opinion  and  prac- 
tice, in  such  cases,  since  the  discovery  of  this  continent.  How  far  the 
claim  of  continuity  may  extend  in  other  cases,  is  less  perfectly  defined, 
and  can  be  settled  only  by  reference  to  the  circumstances  attending 
each.  When  this  continent  was  first  discovered,  Spain  claimed  the 
whole,  in  virtue  of  the  grant  of  the  Pope;  but  a  claim  so  extrav- 
agant and  unreasonable  was  not  acquiesced  in  by  other  countries, 
and  could  not  be  long  maintained.  Other  nations,  especially  Eng- 
land and  France,  at  an  early  period  contested  her  claim.  They 
fitted  out  voyages  of  discovery,  and  made  settlements  on  the  eastern 
coast  of  ISTorth  America.  They  claimed  for  their  settlements,  usually, 
specific  limits  along  the  coasts  or  bays  on  which  they  were  founded; 
and,  generally,  a  region  of  corresponding  width  extending  across  the 
entire  continent  to  the  Pacific  Ocean.  Such  was  the  character  of  the 
limits  assigned  by  England  in  the  charter  which  she  granted  to  her  for- 
mer colonies,  now  the  United  States,  when  there  Y^re  no  special  reasons 
for  varying  from  it.  How  strong  she  regarded  her  claim  to  the  region 
conveyed  by  these  charters  and  extending  westward  of  her  settlements, 
the  war  between  her  and  France,  which  was  terminated  by  the  treaty 
of  Paris,  in  1763,  furnishes  a  striking  illustration.  That  great  contest, 
which  ended  so  gloriously  for  England,  and  effected  so  great  and  dura- 
ble a  change  on  this  continent,  commenced  in  a  conflict  between  her 
claims  and  those  of  France,  resting,  on  her  side,  on  this  very  right  of 
continuity,  extending  westward  from  her  settlements  to  the  Pacific 
Ocean;  and,  on  the  part  of  France,  on  the  same  right,  but  extending 
to  the  region  drained  by  the  Mississippi  and  its  waters,  on  the  ground 
of  settlement  and  exploration.  Their  respective  claims,  which  led  to 
6 


CHAP.  I.]  TITLE   BY    DISCOVERY.  [§  2. 

the  war,  first  clashed  on  the  river  Ohio,  the  waters  of  whicli  tlie  col- 
onial charters,  in  their  western  extension,  covered ;  bnt  which  France 
had  been  unquestionably  the  first  to  settle  and  explore.  If  the  rel- 
ative strength  of  these  different  claims  may  be  tested  by  the  result 
of  that  remarkable  contest,  that  of  continuity  westward  must  be  i)ro- 
nounced  to  be  the  stronger  of  the  two.  England  has  had  at  least  the 
advantage  of  the  result,  and  would  seem  to  be  foreclosed  against  con- 
testing the  principle,  particularly  as  against  us,  who  contributed  so 
much  to  that  result,  and  on  whom  that  contest  and  her  example  and 
pretensions,  from  the  first  settlement  of  our  country,  have  contributed 
to  impress  it  so  deeply  and  indelibly.  But  the  treaty  of  1763,  which 
terminated  that  memorable  and  eventful  struggle,  yielded,  as  has  been 
stated,  the  claim  and  all  the  chartered  rights  of  the  colonies  beyond 
the  Mississippi.  The  seventh  article  establishes  that  river  as  the  jjerma- 
nent  boundary  between  the  possessions  of  Great  Britain  and  France  on 
this  continent."  This  treaty,  Mr.  Calhoun  proceeded  to  argue,  trans- 
ferred to  France  the  title  of  Great  Britain  to  the  country  west  of  the 
Mississippi,  which  title  passed  from  France  to  the  United  States  by  the 
treaty  ceding  Louisiana.  Mr.  Calhoun  then  maintained  that  Spain's 
title  to  the  region  west  of  the  Eocky  Mountains,  based  on  discovery, 
was  transferred  to  the  United  States,  by  cession  from  Spain  to  France, 
and  then  from  France  to  the  United  States. 

Mr.  Calhoun,  Sec.  of  State,   to  Mr.  Pakenham,  Sei^tember  3,  1844,  MSS.  Notes. 
Great  Britain ;  5  Callioun's  Works,  432. 

" Discovery  alone  is  not  enough  to  give  dominion  and  jurisdiction  to 
the  sovereign  or  government  of  the  nation  to  which  the  discoverer  be- 
longs ;  such  discovery  must  be  followed  by  possession.  'All  man- 
kind,' says  that  eminent  and  impartial  writer  on  international  law,Vat- 
tel,  ^have  an  equal  right  to  things  that  have  not  yet  fallen  into  the 
possession  of  any  one,  and  those  things  belong  to  the  person  who  first 
takes  possession  of  them.  When,  therefore,  a  nation  finds  a  country 
uninhabited  and  without  an  owner,  it  may  lawfully  take  possession  of 
it ;  and  after  it  has  sufficiently  made  known  its  will  in  this  respect,  it 
cannot  be  deprived  of  it  by  another  nation.'  'Thus,'  continues  the 
learned  author,  'navigators  going  on  voyages  of  discovery, •furnished 
with  a  commission  from  their  sovereign,  and  meeting  with  islands  or 
other  lands  in  a  desert  state,  have  taken  possession  of  them  in  the  name 
of  their  nation,  and  this  title  has  been  usually  resi)ected,  provided- it 
was  soon  after  followed  by  a  real  jjossession.'  (Vattel,  Ch.  XVIII,  page 
98,  Philadelphia  edition,  1849.)" 

Mr.  Fislj,  Sec.  of  State,  to  Mr.  Preston,  Dec.  31,  1872.     MSS..  Notes  Hayti. 

"The  fact  that  the  discoveries  of  an  American  citizen  first  revealed 
the  importance  of  the  Congo  country  seems  to  justify  this  Government 
in  claiming  a  special  intiuence  upon  the  determination  of  the  questions 

7 


§  2.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

touching  all  foreign  arrangements  for  the  administration  of  that  region, 
especially  as  to  i;s  commerce.'' 

Mr.  Frelinghnysen,  Sec.  of  State,  Let.  to  Mr.  Chandler,  Nov.  22,  1884,  MSS.  Dora. 
Let. 

See  farther  as  to  Congo  and  other  explorations,  infra.  $  51. 

As  to  territoriality  of  rivers,  see  infra,  §  30. 

As  to  title  to  derelict  or  unappropriated  gnano  islands,  based  on  discovery,  see 
infra,  ^  310. 

As  to  title  of  island  to  San  Juan,  Puget  Sound,  on  the  northwestern  coast,  see  Mr. 
Cass,  Sec.  of  State,  to  Lord  Lyons,  October  22,  1859,  MSS.  Notes,  Great  Brit- 
ain; as  to  temporary  joint  occupancy  of  same  island,  see  Mr.  .Trescot,  Acting 
Sec.  of  State,  to  Mr.  Irvine,  August  18,  1860,  Id. ;  House  Ex.  Doc.  No.  77, 
Thirty-sixth  Congress,  first  session;  Senate  Ex.  Doc.  No.  10,  Thirty- sixth 
Congress,  tirst  session;  Senate  Ex.  Doc.  No.  29,  Fortieth  Congress,  second 
session.     See  also  50  Brit,  and  For.  State  Papers,  18.59-'60,  p.  796. 

A  "Memoir,  Historical  and  Political,  on  the  Northwest  Coast  of  North  America 
and  its  adjacent  territories,  illustrated  by  a  map,  «fec.,  by  Robert  Greenhow 
translator  and  librarian  to  the  Department  of  State,"  228  pages,  is  given  in 
Senate  Document  No.  174,  Twenty-sixth  Congress,  first  session. 

As  to  title  of  Key  Yerd  Island,  latitude  22^  15'  north,  longitude  75-  10'  west  from 
Greenwich,  see  Senate  Reports  of  Committees  No.  280,  Thirty-sixth  Congress, 
first  session. 


III.   COXQUEBED  TERRITORY  SUBJECT  TO  TEMPORARY  MILITARY  COS- 

TROL. 


By  the  conquest  and  military  occupation  of  a  portion  of  the  territory 
of  the  United  States  by  a  public  enemy,  that  portion  is  to  be  deemed  a 
foreign  country  so  far  as  respects  our  revenue  laws. 
U.  S.  r.  Rice,  4  Wheat.,  246. 

The  holding  of  a  conquered  territory  is  regarded  as  a  mere  military 
occupation  until  its  fate  shall  be  determined  at  the  treaty  of  peace.  If 
it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed,  and  the  ceded 
territory  becomes  a  part  of  the  nation  to  which  it  is  annexed,  either  on 
the  terms  stipulated  in  the  treaty  of  cession,  or  on  such  as  its  new  mas- 
ter shall  iojpose.  On  such  a  transfer  of  territory  it  has  never  been  held 
that  the  relations  of  the  inhabitants  with  each  other  undergo  any  change. 
Their  relations  with  their  former  sovereign  are  dissolved,  and  new  re- 
lations are  created  between  them  and  the  Government  which  has  ac- 
quired their  territory.  The  same  act  which  transfers  their  country 
transfers  the  allegiance  of  those  who  remain  in  it;  and  the  law,  which 
may  be  denominated  political,  is  necessarily  changed,  although  that 
which  regulates  the  intercourse  and  general  conduct  of  individuals  re- 
mains in  force  until  altered  by  the  newly-created  power  of  the  state. 
American  Insurance  Co.  r.  Canter,  1  Peters,  511.     See  infra  ^  187-8. 

By  the  conquest  and  military  occupation  of  Castine  by  the  British  on 
Sei^tember  1,  1814,  that  territo:y  passed  under  the  temporary  allegiance 
8 


CHAP.  I.]  TITLE    BY    CONQUEST.  [§  3 

and  sovereignty  of  the  enemy,  Tlie  sovereignty  of  tlie  United  States 
over  the  territory  was  suspended  during  such  occupation,  so  that  the 
laws  of  the  United  States  could  not  be  rightfully  enforced  there,  or  be 
obligatory  upon  the  inhabitants  who  remained  and  submitted  to  the 
conquerors.  But,  on  the  other  hand,  a  territory  conquered  by  an  en- 
emy is  not  to  be  considered  as  incorporated  into  the  dominions  of  that 
enemy,  without  a  renunciation  in  a  treaty  of  peace,  or  a  long  and  per- 
manent possession.  Until  such  incorporation,  it  is  still  entitled  to  the 
full  benefit  of  the  law  of  postliminy. 
U.  S.  V.  Hay  ward,  2  Gall.,  4b5. 

The  capture  and  occupation  of  Tampico,  by  the  arms  of  the  United 
States,  during  the  war  with  Mexico,  though  sufficient  to  cause  it  to  be 
regarded  by  other  nations  as  part  or  our  territory,  did  not  make  it  a 
part  of  the  United  States  under  ocr  constitution  and  laws  ;  it  remained 
a  foreign  country  within  the  meaning  of  the  revenue  laws  of  the  United 
States. 

♦  Fleming  v.  Page,  9  Howard,  603. 

The  port  of  San  Francisco  was  conquered  by  the  United  States  as 
early  as  1846.  "  Shortly  afterward,  the  United  States  had  military  pos- 
session of  all  of  Upper  California.  Early  in  1847,  the  President,  as 
constitutional  Commander-in  Cbief  of  the  Army  and  Navy,  authorized 
the  military  and  naval  commander  of  our  forces  in  California  to  excer- 
cise  the  belligerent  rights  of  a  conqueror,  and  to  form  a  civil  govern- 
ment for  the  conquered  country,  and  to  impose  duties  on  imports  and 
tonnage  as  military  contributions  for  the  support  of  the  Government 
and  of  the  army  which  had  the  conquest  in  possession.  *  *  *  "^q 
one  can  doubt  that  these  orders  of  the  President,  and  the  action  of  our 
Army  and  Navy  commander  in  conformity  with  them,  were  according 
to  the  law  of  arms  and  the  right  of  conquest,  or  that  they  were  oi)era- 
five  until  the  ratification  and  exchange  of  a  treaty  of  peace.  Such 
would  be  the  case  by  the  law  of  nations  in  respect  to  war  and  peace  be- 
tween nations.    In  this  instance  it  is  recognized  by  the  treaty  itself." 

Cross  V.  Harrison,  16  Howard,  190. 

The  powers  of  such  military  courts  do  not  necessarily  terminate  with 
cessation  of  hostilities,  if  the  conquering  power  retains  the  sovereignty 
of  the  conquered  territory ;  and  suits  pending  in  such  courts  may,  on 
the  organization  of  civil  government,  be  transferred  by  statute  to  the 
new  courts  so  organized. 

Leitensdorfer  v.  Webb,  20  Howard,  176. 

The  proclamation  of  General  Butler  at  New  Orleans,  dated  the  1st 
and  published  on  the  6th  of  May,  1862,  announcing  that  "  all  rights  of 
property"  would  be  held  "inviolate,  subject  only  to  the  laws  of  the 
United  States" ;  and  tjiat  "  all  foreigners  not  naturalized,  claiming  alle- 
giance to  their  respective  governments,  and  not  having  made  oath  of 

9 


§  3.]  SOVEREIGNTY  OVER  LAND.  [cHAP.  I. 

allegiance  to  the  government  of  the  Confederate  States."  would  be 
"protected  in  their  persons  and  property  as  heretofore  under  the  laws 
of  the  United  States,"  did  but  reiterate  the  rules  established  by  the 
legislative  and  executive  action  of  the  National  Government ;  and  ves- 
sels and  cargoes  belonging  to  citizens  of  New  Orleans,  or  neutrals  re- 
siding there,  and  not  affected  by  any  attempts  to  run  the  blockade,  or 
by  any  act  of  hostility  against  the  United  States,  were  protected  by 
that  proclamation,  though  such  persons,  by  being  identified  with  the 
enemy  by  long  voluntary  residence  and  business  relations,  may  have 
been  "-enemies"  within  the  meaning  of  the  expression  as  uspd  in  public 
law. 

The  Venice,  2  Wallace,  258. 

A  conqueror  has  a  right  to  displace  the  pre-existing  authority  and 
to  assume,  to  such  extent  as  he  may  deem«proper,  the  exercise  by  him- 
self of  all  powers  and  functions  of  government.  He  may  appoint  all 
the  necessary  oflOicers  and  clothe  them  with  designated  i^owers,  larger 
or  smaller,  according  to  his  pleasure,  and  he  may  prescribe  the  revenues 
to  be  paid,  and  apply  them  to  his  own  use  or  otherwise.  There  is 
no  limit  to  the  powers  that  may  be  exerted  in  such  cases,  save  those 
which  are  found  in  the  laws  and  usages  of  war,  as  settled  by  the  law  of 
nations. 

New  Orleans  v.  Steamship  Company,  20  Wallace,  387. 

This  subject,  in  reference  to  the  invader's  right  to  property  seized  by  him,  is  dis- 
cussed infra,  §  §  338  ff. 

"  By  the  law  of  nations  a  conquered  territory  is  subject  to  be  gov- 
erned by  the  conqueror  daring  his  military  possession,  and  until  there 
is  either  a  treaty  of  peace,  or  he  shall  voluntarily  withdraw  from  it.  The 
old  civil  government  being  necessarily  superseded,  it  is  the  right  and 
duty  of  the  conqueror  to  secure  his  conquest,  and  to  provide  for  the 
maiutenance  of  civil  order  and  the  rights  of  the  inhabitants.  This 
right  has  been  exercised  and  this  duty  performed  by  our  military  and 
naval  commanders,  by  the  establishment  of  temporary  governments  in 
some  of  the  conquered  provinces  in  Mexico,  assimilating  them  as  far  as 
practicable  to  the  free  institutions  of  our  own  country.  In  the  prov- 
inces of  New  Mexico,  and  of  the  Californias,  little  if  any  further  resist- 
ance is  apprehended  from  the  inhabitants  to  the  temjjorary  govern- 
ments which  have  thus,  from  the  necessity  of  the  case-and  according  to 
the  laws  of  war,  been  established.  It  may  be  proper  to  provide  for 
the  security  of  these  important  conquests  by  making  an  adequate  ap- 
propriation for  purpose  of  erecting  fortiiications  and  defraying  the  ex- 
penses necessarily  incident  to  the  maintenance  of  our  jjossession  and 
authority  over  them. " 

President  Polk's  second  annual  message,  1846.     See  ivfra  $$  353,  jf. 

"In  prosecuting  a  foreign  war  thus  duly  declared  by  Congress,  we 
have  the  right,  by  conquest  and  military  occui^atiou,  to  acquire  posses- 
10 


CHAP.  I.]  EFFECT    OF    CHANGE    OF    SOVEREIGN.  [§  4. 

sion  of  the  territories  of  the  enemy,  and,  during  the  war,  to  exercise 
the  fullest  rights  of  sovereignty  over  it.  The  sovereignty  of  the  enemy 
is  in  auch  case  'suspended,'  and  his  laws  can  'no  longer  be  rightfully 
enforced'  over  the  conquered  territory,  'or  be  obligatory  upon  the  inhab- 
itants who  remain  and  submit  to  the  conqueror.  By  the  surrender  the 
inhabitants  pass  under  a  temporary  allegiance'  to  the  conqueror,  and 
are  'bound  by  such  laws,  and  such  only,  as'  he  may  choose  to  recognize 
and  impose.  'From  the  nature  of  the  case,  no  other  laws  could  be  obli- 
gatory upon  them;  for  where  there  is  no  protection,  or  allegiance,  or 
sovereignty,  there  can  be  no  claim  to  obedience.'  These  are  well-estab- 
lished principles  of  the  laws  of  war,  as  recognized  and  practised  by 
civilized  nations ;  and  they  have  been  sanctioned  by  the  highest  judicial 
tribunal  of  our  own  Qountry." 

President  Polk's  special  message,  July  24,  1848. 

The  conqueror  possesses  the  right  to  prescribe  the  limitations  of  his 
conquest  and  the  terms  and  conditions  of  peace. 

2  Op.,  321,  Berrien,  1830. 

The  conquest  of  a  country,  or  a  portion  of  a  country,  by  a  public 
enemy  entitles  such  enemy  to  the  sovereignty  as  far  as  his  conquest 
extends,  and  gives  him  dominion  as  long  as  he  retains  his  military  pos- 
session. 

9  Op.,  140,  Black,  1858. 

The  inhabitants  who  remain  and  submit,  and  strangers  who  go  there 
during  the  occupation,  must  take  the  law  from  the  ruler  de  facto^  and 
not  from  the  government  de  jure,  which  has  been  expelled;  and  when 
the  former  government  resumes  possession,  whether  by  force  or  by 
treaty,  it  cannot  call  the  citizens  or  subjects  of  a  third  nation  to  account 
for  obeying  the  authority  which  was  temporarily  supreme. 

Ihid.     As  to  effect  of  cessation  of- hostilities,  see  infra,  $   355.     As  to  de  facto 
goveraments,  see  infra,  $  7. 


IV.  CONQUERED,    ANNEXED,    OR    DIVIDED     TERRITORY   RETAINS    ITS 
PRIOR  MUNICIPAL  INSTITUTIONS. 


A  mere  change  of  sovereignty  does  not  produce  any  change  in  private 
rights  of  proj)erty  in  the  soil,  whether  the  interest  was  acquired  by  law 
under  a  grant  from  the  State  or  by  individual  contract. 
Mutual  Assurance  Society  v.  Watts,  1  Wheat.,  279. 

Had  Florida  changed  its  sovereign  by  an  act  containing  no  stipulation 
respecting  the  property  of  individuals,  the  right  of  property  in  all  those 
who  became  subjects  or  citizens  of  the  new  government  would  have 
been  unalfected  by  the  change. 

y.  S.  V.  Percheman,  7  Peters,  51. 

11 


§  4.J  SOVEREIGNTY  OVER  LAND.  [cHAP.  I. 

The  second  article  of  the  treaty  between  the  United  States  and  Spain, 
of  February  22, 1819,  by  which  His  Catholic  Majesty  ceded  to  the  United 
States,  in  full  property  aud  sovereignty,  all  the  territories,  &c.,  did  not 
operate  to  afiect  the  titles  of  individuals  to  portions  of  the  ceded  terri- 
tory. The  provision  in  the  eighth  article  for  the  confirmation  of  all 
grants  made  before  a  certain  time  "  by  His  Catholic  Majesty  or  his 
lawful  authorities,"  &c.,  did  not  enlarge  the  cession ;  and  under  it  grants 
made  by  a  governor,  generally  authorized  to  grant  lands,  are  not  only 
prima  facie  valid,  but  binding  until  disavowed,  even  if  there  was  power 
in  the  Crown  to  disavow  it.  / 

United  States  v.  Clarke,  8  Peterg,  436. 

But  an  order  of  survey  made  by  the  governor  after  January  24, 1819, 
was  void  under  the  treaty. 
Ibid.     Siipra,  ^  5a. 

The  sovereign  who  acquires  an  inhabited  territory  acquires  full  do- 
minion over  it,  but  this  dominion  does  not  divest  the  vested  rights  of 
individuals  to  property. 

Delassus  v.  United  States,  9  Peters,  117;  Mitcliel  v.  United  States,  iUd.,  711; 
U.  S.  V.  Perclieman,  7  ibid.,  51. 

By  the  law  of  nations  the  rights  and  property  of  the  inhabitants  are 
protected,  even  in  the  case  of  a  conquered  country,  and  held  sacred  and 
inviolable  wiien  it  is  ceded  by  treaty,  with  or  without  any  stipulation  to 
such  effect;  and  the  laws,  whether  in  writing  or  evidenced  by  the  usage 
and  customs  of  the  conquered  or  ceded  country,  continue  in  force  till 
altered  by  the  new  sovereign. 

Strotlier  r.  Lucas,  12  Peters,  410. 

Everj"  nation  acquiring  territory,  by  treaty  or  otherwise,  must  hold  it 
subject  to  the  constitution  and  laws  of  its  own  government,  and  not 
according  to  those  of  the  government  ceding  it. 
Pollard's  Lessee  v.  Hagan,  3  Howard,  212. 

The  rights  and  powers  of  sovereignty  of  a  nation  over  its  territory 
cease  on  the  transfer  of  that  sovereignty  to  another  government  by  a 
cession  of  the  territory.  The  power  to  preserve  peace  and  order  may 
remain  in  the  officers  previously  appointed  by  the  ceding  state  until 
the  actual  presence  of  the  agents  of  the  succeeding  government,  but  this 
does  not  imply  that  sovereign  power  remains  in  the  former  nation. 

U.  S.  r.  Reynes,  9  Howard,  127  :  Davis  v.  Concordia,  id.,  280  ;  U.  S.  v.  D'Auterive, 
in  Howard,  (ifl9  ;  Montanlt  t'.  U.  S.,  12  id.,  47. 

It  is  true  that  in  a  treaty  for  the  cession  of  territory,  its  national 
character  continues  for  all  commercial  purposes,  but  full  sovereignty 
for  the  exercise  of  it  does  not  pass  to  the  nation  to  which  it  is  trans- 
ferred until  actual  delivery.  But  it  is  also  true  that  the  exercise  of 
sovereignty  by  the  ceding  country  ceases,  except  for  strictly  municipal 
12 


CHAP.  I.]  EFFECT    OF    CHANGE    OF    SOVEREIGN.  [§  4. 

purposes,  especially  for  granting  lauds.  And  for  tbe  same  reason  in 
both,  cases,  because  after  tbe  treaty  is  made  there  is  not  in  either  the 
union  of  possession  and  the  right  to  the  territory  which  must  concur  to 
give  iilenum  dominium  et  utile.  To  give  that  there  must  be  the  jus  in 
rem  and  ihajus  in  re,  or  what  is  called  in  the  common  law  of  England 
the  juris  et  seisinae  conjunetio. 

Davis?;.  Concordia,  9  Howard,  280.     Infra,  ^  r>rt. 

When  Florida  was  ceded  to  the  United  States  and  possession  of  it 
had  actually  been  taken  it  was  held  by  the  Secretary  of  the  Treasury, 
whose  opinion  was  sanctioned  by  the  Attorney-General,  that,  under 
our  revenue  laws,  its  ports  must  be  regarded  as  foreign  until  they  were 
established  as  domestic  by  an  act  of  Congress. 

Flemlog  V.  Page,  9  Howard,  603. 

In  cases  of  conquest,  among  civilized  countries,  having  established 
laws  of  property,  the-  rule  is  that  laws,  usages,  and  municipal  regula- 
tions in  force  at  the  time  of  the  conquest  remain  in  force  until  changed 
by  the  new  sovereign. 

U.  S.  V.  Power's  heirs,  11  Howard,  570;  U.  S.  v.  Heirs  of  Rillieux,  14  id.,  189. 

Spanish  laws  prevailing  in  Louisiana  before  its  cession,  and  affecting 
titles  to  lands  there,  must  be  judicially  noticed  by  the  court.  Their 
existence  is  not  matter  of  fact  to  be  tried  by  a  jury. 

U.  S.  V.  Turner,  11  Howard,  663. 

The  mere  fact  that  a  territory  has  been  ceded  by  one  sovereignty  to 
another  does  not  open  it  to   a  free  commercial  intercourse  with   the 
world  as  a  matter  of  course  until  the  new  possessor  has  prescribed  by 
legislation  some  terms  upon  which  intercourse  may  be  conducted. 
Cross  V.  Harrison,  16  Howard,  164. 

The  general  principle  is  undisputed  that  the  division  of  an  empire 
works  no  forfeiture  of  a  right  of  property  previously  acquired. 

Jones  V.  McMasters,  20  Howard,  8. 

When  New  Mexico  was  conquered  by  the  United  States,  it  was  only 
the  allegiance  of  the  people  that  was  changed ;  their  relation  to  each 
other  and  their  rights  of  property  remained  undisturbed. 
Leitensdorfer  et  al.  v.  Webb,  20  Howard,  176. 

The  courts  of  the  United  States,  in  passing  upon  the  rights  of  the 
inhabitants  of  California  to  the  property  they  claim  under  grants 
from  the  Spanish  and  Mexican  governments,  must  be  governed  by  the 
stii)ulations  of  the  treaty,  the  law  of  nations,  the  laws,  usages,  and 
customs  of  the  former  government,  the  principles  of  ecpiity,  and  the 
decisions  of  the  Supreme  Court,  so  far  as  they  are  applicable. 

U.  S.  V.  Auguisola,  1  Wallace,  352. 
As  to  Mexican  titles,  sec  infra  §  58. 
As  to  *.reaty  stipulations  with  Spain,  see  infra  §  161. 

13 


5>  4.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

The  cession  of  California  to  the  United  States  did  not  impair  the 
rights  of  private  property.  Those  riglits  are  consecrated  by  the  law 
of  nations  and  protected  by  the  treaty  of  Guadalupe- Hidalgo. 

U.  S.  V.  Moreno,  1  Wallace,  400. 

As  to  treaty  of  Guadalupe-Hidalgo,  see  infra  §  154. 

After  conquest  such  of  the  habitants  as  do  not  remain  and  become 
citizens  of  the  victorious  sovereign,  but,  on  the  contrary,  adhere  to 
their  old  allegiance  and  continue  in  the  service  of  the  vanquished 
sovereign,  deprive  themselves  of  protection  or  security  to  their  proper- 
ty, except  so  far  as  it  may  be  secured  by  treaty.  Hence,  where,  on 
such  a  conquest,  a  treaty  provided  that  the  former  inhabitants  who 
wished  to  adhere  in  allegiance  to  their  vanquished  sovereign  might  sell 
their  property,  provided  they  sold  it  to  a  certain  class  of  persons  and 
within  a  time  named,  the  property,  if  not  so  sold,  became  abandoned 
to  the  conqueror. 

U.  S.  V.  Repentigny,  5  Wallace,  211. 

As  to  naturalization  by  territorial  change,  see  infra  §  187. 

The  treaty  of  Guadalupe-Hidalgo,  between  the  United  States  and 
Mexico,  did  not  divest  the  pueblo,  existing  at  the  site  of  the  city  of  San 
Francisco,  of  any  rights  of  property,  or  alter  the  character  of  the  inter- 
ests it  may  have  held  in  any  lauds  under  the  former  government.  It 
makes  no  distinction  in  the  protection  it  provides  between  the  property 
of  individuals  and  that  held  by  towns  under  the  Mexican  Government. 

Townsend  v.  Greeley,  5  Wallace,  326.     See  ivfra,  §  152. 

By  the  law  of  nations  a  change  of  government  does  not  affect  pre- 
existing rights  of  property. 

U,  S.  V.  Rosehus  et  al.,  15  Howard,  36 ;  Strotlier  v.  Lucas,  12  Peters,  412  ;  Dent  v. 
Emmeger,  14  Wallace,  308. 

This  rule  does  not  extend  to  mere  inchoate  rights  of  property,  such 
as  are  of  imperfect  obligation  and  affect  only  the  conscience  of  the  new 
sovereign. 

Dent  V.  Emmeger,  14  Wallace,  308. 

Titles  which^were  perfect  before  the  cession  of  Louisiana  to  the  United 
States  continued  so  afterwards,  and  were  in  no  wise  affected  by  the 
change  of  sovereignty.  The  treaty  so  provided,  and  such  would  have 
been  the  effect  of  the  principles  of  the  law  of  nations  if  the  treaty  had 
contained  no  provision  on  thA  subject. 

United  States  v.  Roselius,   15  Howard,  31 ;  Strotlier  v.  Lucas,  12  Peters,  412 ; 

Dent  V.  Emmeger,  14  Wallace,  308. 
(As  to  operation  of  treaties  annexing  Louisiiina,  see  infra,  $  148;   annexing 

Florida,  itifra,  §  161  ;  annexing  California  and  New  Mexico,  infra,  §  154.) 

After  the  surrender  of  Kew  Orleans  to  General  Butler,  and  the  issu- 
ing of  his  proclamation  of  May  1,  1802,  declaring  that  "  all  rights  of 
property  of  whatever  kind  will  be  held  inviolate,  subject  only  to  the 
14 


CHAP.  I.]  EFFECT    OF    CHANGE    OF    SOVEREIGN.  [§  4. 

laws  of  the  United  States,"  private  property  iu  the  district  under  his 
command  was  not  subject  to  military  seizure  as  booty  of  war,  though 
not  exempt  from  confiscation  under  the  acts  of  Congress  as  enemies' 
property,  if  in  truth  it  was  such. 

Planters'  Bank  v.  Union  Bank,  16  Wallace,  483. 

The  division  of  a  country  and  the  maintenance  of  independent  gov- 
ernments over  its  different  parts  do  not  of  themselves  divest  the  rights 
which  the  citizens  of  either  have  to  i^roperty  situate  within  the  terri- 
tory of  the  other. 

Airhartw.  Massieu,  98  U.  S.,  491, 

A  Mexican  was  not,  by  the  revolution  which  resulted  in  the  independ- 
ence of  Texas,  or  by  her  constitution  of  March  17, 1836,  or  her  laws  sub- 
sequently enacted,  divested  of  his  title  to  lands  in  that  State,  but  he 
retained  the  right  to  alienate  and  transmit  them  to  his  heirs,  and  the 
latter  are  entitled  to  sue  for  and  recover  them. 

Hid. 

As  to  annexation  of  Texas,  see  infra,  §$  72,  154. 

The  general  principle  that  when  political  jurisdiction  and  legislative 
power  over  a  territory  are  transferred  from  one  sovereign  to  another, 
the  municipal  laws  of  the  territory  continue  in  force  until  abrogated  by 
the  new  sovereign,  is  applicable  as  to  territory  owned  by  the  United 
States,  the  exclusive  jurisdiction  of  which  is  ceded  to  them  by  a  State 
in  a  manner  not  provided  for  by  the  Constitution,  to  so  much  thereof  as 
is  not  used  by  the  United  States  for  its  forts,  buildings,  and  other  need- 
ful purposes. 

Chicago  and.  Pacific  Eailway  Co.  v.  McGlinn,  114  U.  S.,  542. 

The  State  of  Kansas  ceded  to  the  United  States  exclusive  jurisdic- 
tion over  the  Fort  Leavenworth  Military  Reservation  within  that  State, 
then  and  i)reviously  the  property  of  the  United  States.  At  the  time  of 
the  cession  a  State  law"  was  in  force  in  Kansas  requiring  railroad  com- 
panies whose  road  was  not  inclosed  by  a  lawful  fence,  to  pay  to  the 
owners  of  all  animals  killed  or  wounded  by  the  engines  or  cars  of  the 
companies  the  full  value  of  the  animals  killed  and  the  full  damage  to 
those  wounded,  whether  the  killing  or  wounding  was  caused  by  negli- 
gence or  not.  It  was  ruled  in  the  Supreme  Court  thatthis  act  remained 
in  force  in  the  reservation  after  the  cession. 

Ibid. 

"  I  understand  the  decision  of  the  Supreme  Court  of  the  United  States 
in  the  case  of  Harrison  v.  Cross  (16  Howard,  164-202)  to  declare  its 
opinion  that  upon  the  addition  to  the  United  States  of  new  territory  by 
conquest  and  cession,  the  acts  regulating  foreign  commerce  attach  to 
and  take  effect  within  such  territory  ipso  facto,  and  without  any  fresh 
act  of  legislation  expressly  giving  such  extension  toihepreexisting  laws. 
I  can  see  no  reason  for  a  discrimination  in  this  respect  between  acts 

15 


§  4.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

regulating  foreign  commerce  and  the  laws  regulating  intercourse  with 
the  Indian  tribes.  There  is,  indeed,  a  strong  analogy  in  the  two  sub- 
jects. The  Indians,  if  not  foreigners,  are  not  citizens,  and  their  tribes 
have  the  character  of  dependent  nations  under  the  protection  of  this 
Government.  As  Chief-Justice  Marshall  remarks,  delivering  the  opin- 
ion of  the  Supreme  Court  in  Worcester  v.  The  State  of  Georgia  (6  Peters, 
557)  '  the  treaties  and  laws  of  the  United  States  contemplate  the  In- 
dian territory  as  completely  separated  from  that  of  the  States,  and  pro- 
vide that  all  intercourse  with  them  shall  be  carried  on  exclusively  by 
the  Government  of  the  Union.' 

"  The  same  clause  of  the  Constitution  invests  Congress  with  power 
to  regulate  commerce  with  foreign  nations  *  *  *  and  with  the 
Indian  tribes.' 

-'  The  act  of  June  30,  1834  (4  Stat.,  729),  defines  the  '  Indian  country? 
as,  in  fact,  '  all  that  part  of  the  United  States  west  of  the  Mississippi 
and  not  within  the  States  of  Missouri  and  Louisiana,  or  the  Territory 
of  Arkansas.'  This,  by  a  happy  elasticity  of  expression,  widening  as 
our  domain  widens,  includes  the  territory  ceded  by  Russia." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Schotield,  Jan.  30,  1869,  MSS.  Doni.  Let. 

For  an  elaborate  discussion  of  Spanish  titles  in  West  Florida,  see  report  of  Mr. 

Livingston,  Sec.  of  State,  to  President  Jackson,  June  12, 1832,  MSS.  Report 

book  Dep.  of  State. 

"But  the  decision  now  made  rests  on  an  alleged  rule  of  international 
law  which,  assumed,  as  it  now  is,  by  the  Government  of  Chili,  becomes 
a  proper  matter  of  discussion  between  ourselves  and  that  Government. 
It  is  asserted  by  the  Government  of  Chili  (for,  in  international  relations, 
and  the  maintenance  of  international  duties,  the  action  of  the  judiciary 
in  Chillis  to  be  treated,  when  assumed  by  the  Government,  as  the  act  ot 
the  Government)  that  a  sovereign,  when  occuj^ying  a  conquered  territory, 
has,  by  international  law,  the  right  to  test  titles  acquired  under  his  prede 
cessor  by  applying  to  them  his  own  municipal  law,  and  not  the  muni- 
cipal law  of  his  predecessor  under  which  they  vested.  The  true  prin- 
ciple, however,  is  expressed  in  the  following  passage  cited  in  the  me- 
morialist's brief: 

"'But  the  right  of  conquest  cannot  affect  the  property  of  private 
persons  ;  war  being  only  a  relation  of  state  to  state,  it  follows  that  one 
of  the  belligerents  who  makes  conquests  in  the  territory  of  the  other 
cannot  acquire  more  rights  than  the  one  for  whom  he  is  substituted  ; 
and  that  thus,  as  the  invaded  or  conquered  state  did  not  possess  any 
right  over  private  property,  so  also  the  invader  or  conqueror  cannot 
legitimately  exercise  any  right  over  that  property.  Such  is  to  day  the 
public  law  of  Europe,  whose  nations  have  corrected  the  barbarism  of 
ancient  practices  which  place  j)rivate  as  well  as  public  property  under 
military  law.'  [C.  Mass6,  Rapports  du  droit  des  gens  avec  le  droit 
civil.  Vol.  I,  p.  123,  §  148-149.1 
16 


CHAP.  I.]  CONTINUITY    OF    TITLES.  [§  4. 

"  This  doctrine  has  frequently  been  acted  on  in  the  United  States. 
Thus  it  has  been  held  by  the  Supreme  Court  that  when  ISTew  Mexico 
was  conquered  by  the  United  States,  it  was  only  the  allejifiance  of  the 
people  that  was  changed;  their  relation  to  each  other,  and  their  rights 
of  property  remained  undisturbed.  [Leitensdorfer  v.  Webb,  20  How., 
17G.] 

"  The  same  has  been  held  as  to  California.  The  rights  acquired  under 
the  prior  Mexican  and  Spanish  law,  so  it  was  decided,  were  'consecrated 
by  the  law  of  nations.'  [U.  S.  v.  Moreno,  1  Wall.,  400.  See  U.  S.  v. 
Auguisola,  1  Wall.,  352;  Townsend  v.  Greeley,  5  Wall.,  326;  Dent  v. 
Emmeger,  14  Wall.,  308;  Airhart  v.  Massieu,  98  U.  S.,  491;  Mutual 
Assurance  Society  v.  Watts,  1  Wheat,  279 ;  Belassus  v.  U.  S.,  9  Peters, 
117;  Mitchel  v.  U.  S.,  9  Peters,  711;  U.  S.  v.  Eepentigny,  5  Wall.,  211.] 

"  The  Government  of  the  United  States,  therefore,  holds  that  titles 
derived  from  a  duly  constituted  prior  foreign  Government  to  which  it 
has  succeeded  are  '  consecrated  by  the  law  of  nations'  even  as  against 
titles  claimed  under  its  own  subsequent  laws.  The  rights  of  a  resident 
neutral — having  become  fixed  and  vested  by  the  law  of  the  country — 
cannot  be  denied  or  injuriously  affected  by  a  change  in  the  sovereignty 
or  public  control  of  that  country  by  transfer  to  another  Government. 
His  remedies  may  be  affected  by  the  change  of  sovereignty,  but  his 
rights  at  the  time  of  the  change  must  be  measured  and  determined  by 
the  law  under  which  he  acquired  them.  *  *  *  The  Government  of 
the  United  States  is  therefore  prepared  to  insist  on  the  continued  valid- 
ity of  such  titles,  as  held  by  citizens  of  the  United  States,  when  at- 
tacked by  foreign  Governments  succeeding  that  by  which  they  [were] 
granted.  Title  to  land  and  landed  imiDroveraents,  is,  by  the  law  of  na- 
tions, a  continuous  right,  not  subject  to  be  divested  by  any  retroactive 
legislation  of  new  Governments  taking  the  place  of  that  by  which  such 
title  was  lawfully  granted.  Of  course  it  is  not  intended  here  to  deny 
the  prerogative  of  a  conqueror  to  confiscate  for  political  offenses,  or  to 
withdraw  franchises  which  by  the  law  of  nations  can  be  withdrawn  by 
Governments  for  the  time  being.  Such  prerogatives  have  been  conceded 
by  the  United  States  as  well  as  by  other  members  of  the  family  of  na- 
tions by  which  international  law  is  constituted.  What,  however,  is 
here  denied  is  the  right  of  any  Government  to  declare  titles  lawfully 
granted  by  its  predecessor  to  be  vacated  because  they  could  not  have 
been  lawfully  granted  if  its  own  law  had,  at  the  time  in  question,  pre- 
vailed. This  pretension  strikes  at  that  principle  of  historical  municipal 
continuity  of  Governments  which  is  at  the  basis  of  international  law." 
Mr.  Bayard,  Sec.  of  State,  to  Mr.Koberts,  Mar.  20,  1886,  MSS.Instr.  Chili. 

On  the  cession  of  Florida  to  the  United  States  the  jurisdiction  and 
authority  of  the  former  sovereign  continued  in  full  force  until  possession 
of  the  ceded  territory  had  actually  passed.     It  follows  that  an  importa- 
tion of  goods  into  the  Floridas  after  the  cession,  but  previously  to  the 
S.  Mis.  1G2— VOL.  I 2  17 


§   5]     ,  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

delivery  of  possession,  was  aii  affair  between  the  importer  and  the 
Spanish  Government,  of  which  the  G-overnment  of  the  United  States 
had  no  ri![;lit  to  complain. 
1  Op.,  483,  Wirt,  1821. 

But  goods  carried  into  a  port  of  Florida  before  the  delivery  of  posses- 
sion, remaining  in  j)ort  on  shipboard  until  after  delivery  and  then 
brought  into  the  United  States,  having  never  been  entered  in  the  Span- 
ish custom-houses,  would  be  subject  to  the  revenue  laws  of  the  United 
States. 

Unci.     See  infra,  ^  161,  as  to  treaty  ceding  Florida. 

Grants  of  land  in  Florida  made  by  the  King  of  Spain  to  the  Eoman 
Catholic  Church  before  the  cession  of  that  territory  to  the  United  States 
were  valid,  and  were  confirmed  by  the  treaty  of  cession. 

1  Op.,  563,  Wirt,  1822. 

As  to  annexation  of  Louisiana  and  Florida  see  infra,  ?§  148,  161. 

V.   BENEFITS    AND    BURDENS    PASS    TO    CONQUERING    OB    ANNEXING 

SOVEREIGNS. 

§   5. 

Under  the  treaty  of  the  1st  of  October,  1800,  Louisiana  was  ceded  to 
the  United  States  in  full  sovereignty  and  in  every  respect,  with  all  its 
rights  and  appurtenances,  as  it  was  held  by  the  Eepublic  of  France  and 
as  it  was  received  by  that  Eepublic  from  Spain. 

New  Orleans  v.  United  States,  10  Peters,  662;  Strother  v.  Lucas,  12  Peters,  410. 
Infra,  §148. 

The  treaty  of  Guadalupe  Hidalgo  imposed  upon  the  Government  of 
the  United  States  the  obligation  to  i^rotect  titles  to  land  in  California 
acquired  under  Mexican  rule. 

Peralta  v.  U.  S.,  3  Wallace,  434.'    Infra,  ^  1.54. 

The  Government  of  the  United  States,  after  the  cession  of  Louisiana, 
succeeded  to  the  sovereign  interests  of  France  and  Spain  in  that  prov- 
ince, including  reservations  of  the  right  to  use  soil  for  public  purposes. 

Joseplis  V.  U.  S.,  1  Nott.  and  H.,  197;  2  Nott.  and  H.,  586. 

But  this  succession  did  not  authorize  the  United  States  to  exercise 
prerogatives  of  sovereignty  not  consistent  with  the  Constitution  of  the 
United  States. 

New  Orleans  v.  U.  S.,10  Pet.,  682. 

As  to  treaty  ceding  Louisiana,  see  infra,  §  148. 

An  alliance  between  two  nations  cannot  absolve  either  of  them  from 
the  obligations  of  previous  treaties  with  third  powers. 

Mr.  Adams,  Sec.  of  State,  to  Mr.  De  Onis,  March  12, 1818.     MSS.  For.  Leg.  Notes. 
Infra,  $  136. 

18 


CHAP,  l]  burdens    pass    TO    NEW    SOVEREIGN.  [§  5. 

"  No  principle  of  international  law  can  be  more  clearly  established 
than  this,  that  the  rights  and  the  obligations  of  a  nation  in  regard  to 
other  States  are  independent  of  its  internal  revolutions  of  government. 
It  extends  even  to  the  case  of  conquest.  The  conqueror  who  reduces  a 
nation  to  his  subjection  receives  it  subject  to  all  its  engagements  and 
duties  towards  others,  the  fultillment  of  which  then  becomes  his  own 
duty.  However  frequent  the  instances  of  departure  from  this  principle 
may  be  in  point  of  fact,  it  cannot,  with  any  color  of  reason,  be  contested 
on  the  ground  of  right." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Everett,  August  10,  1818.     MSS.  Instruc.  to 
Ministers.     Infra,  $$  135-137. 

"  Your  letter  of  the  24th  instant  and  the  proposals  contained  in  it, 
ottered  as  the  basis  of  a  treaty  for  the  adjustment  of  all  the  subjects  in 
discussion  between  the  United  States  and  Spain,  have  been  received 
and  laid  before  the  President  of  the  United  States.  I  am  directed  by 
him  to  forbear  entering  into  any  examination  of  the  historical  disquisi- 
tion concerning  the  original  pretensions  of  Spain  to  all  the  territories 
bordering  on  the  Gulf  of  Mexico  and  the  whole  country  included  in  the 
French  colony  of  Louisiana,  which  you  have  thought  proper  to  introduce 
into  youi'  note.  The  right  of  the  United  States  to  the  river  Mississippi 
and  to  all  the  waters  flowing  into  it,  and  to  all  the  territories  watered 
by  them,  remains  as  entire  and  unshaken  by  anything  now  adduced  by 
you  as  by  anything  which  had  ever  preceded  it  in  the  discussions  be- 
tween the  two  Governments.  It  is  established  beyond  the  power  of 
further  controversy;  nor  could  it  answer  any  useful  purpose  to  repro- 
duce proofs  which  have  already  more  than  once  been  shown,  and  which, 
remaining  unimpaired,  must  henceforth  be  considered  by  the  United 
States  as  not  susceptible  of  refutation." 

Mr,  Adams,  Sec.  of  State,  to  Mr.  De  Ouis,  October  31,  1818.     MSS.  For.  Leg, 

Notes. 
As  to  title  to  the  Mississippi,  see  infra,  $  30;  as  to  treaties  with  France  and 

Spain,  see  infra,  §$  148,  161. 

"  In  the  event  of  a  state  being  divided  into  two  or  more  independent 
sovereignties,  the  obligations  which  had  accrued  to'  the  whole  before 
the  division  are  ratably  binding  on  the  different  parts;  for,  as  Story 
says, '  the  division  of  an  empire  creates  no  forfeiture  of  previously  vested 
rights  of  property.'  And  so,  e  contrarioj  where  several  separate  states 
are  incorporated  into  one  sovereignty,  tlie  rights  and  obligations  that 
belonged  to  each  before  the  union  are  binding  upon  the  new  state;  but, 
as  General  Halleck  points  out,  of  course  the  rule  must  be  modified  to 
suit  the  uiiture  of  the  union  formed  and  the  characters  of  the  act  of  in- 
corporation in  each  particular  case." 

Abdy's  Kent  (1878),  96,  citing  Wheat.,  Elem.,  ed.  1863,  vol.  1,  p.  52,  note  20. 

It  was  held  by  the  commissioners  under  the  British- American  mixed 
commission  of  1853,  where  it  appeared  that  a  claim  against  Texas,  on 
bonds  for  which  the  revenue  was  pledged,  had  not  been  recognized  by 
the  British  Government  as  a  subject  for  diplomatic  intervention  before 
the  convention  of  1853,  and  provision  had  previously  been  made  by 

19 


§   5.]  SOVEREIGNTY  OVER  LAND.         [CHAP.  I. 

negotiatious  between  the  United  States  and  Texas  for  the  tuljustmeut 
of  «uch  claims,  that  the  case  did  not  fall  within  the  unsettled  claims 
referred  to  the  commissioners. 

Proceedings  of  commission,  &c.,  382. 

In  his  ojjinion  Mr.  Upham,  commissioner,  said : 

"The  matter  of  the  indebtedness  of  Texas  was  a  distinct  subject  of 
agreement  by  the  terms  of  the  union.  According  to  those  terms  the 
vacant  and  unappropriated  lands  within  the  limits  of  Texas  were  to 
be  retained  by  her,  '  and  applied  to  the  payment  of  the  debts  and  lia- 
bilities of  the  Eepublic  of  Texas,  and  the  residue  of  the  lands,  after  dis- 
chargiug  these  debts  and  liabilities,  was  to  be  disposed  of  as  the  State 
might  direct,  but  in  no  event  were  the  debts  and  liabilities  to  become 
a  charge  upon  the  Government  of  the  United  States.'  [United  States 
Statutes  at  Large,  vol.  5,  p.  798.] 

"  The  lands  of  Texas  were  thus  specifically  set  apart  for  the  payment 
of  the  debts  of  Texas,  by  agreement  of  the  two  Governments,  in  addi- 
tion to  any  separate  pledge  Texas  had  previously  made  of  this  class  of 
property,  for  the  payment  of  her  debts. 

"  The  United  States  subsequently,  by  act  of  Congress,  on  the  9th  of 
September,  1850,  on  condition  of  the  cession  of  large  tracts  of  these 
lands,  agreed  to  pay  Texas  $10,000,000,  but  stipulated  '  that  15,000,0.00 
of  the  amount  should  be  retained  in  the  United  States  Treasury  until 
creditors,  holding  bonds,  for  which  duties  on  imports  were  specifically 
pledged,  should  file  releases  of  all  claims  against  the  United  States. 
[United  States  Statutes  at  Large,  vol.  9,  ch.  49,  p.  446.] 

"  It  thus  appears  that  the  United  States  has  acted,  from  the  outset, 
in  concert  with  Texas,  in  causing  express  provision  to  be  made  for  the 
payment  of  these  debts. 

"A  difiiculty  early  arose  in  carrying  the  law,  above  cited,  into  effect, 
for  the  reason  that  the  pledge  of  payment  of  the  debts  of  Texas  was 
made  generally  upon  her  revenues,  and  was  not  specific  '  on  imposts '  eo 
nomine,  and  for  the  further  reason  that  doubts  arose  whether  any  por- 
tion of  the  debts  could  be  paid,  under  this  contract,  unless  the  whole 
could  be  discharged. 

"  These  questions  have  been  considered  at  much  length  by  the  advis- 
ing officers  of  Government,  and  reports  have  been  made  ou  the  subject 
by  Mr.  Corwin,  the  Secretary  of  the  Treasury,  and  more  recently  by 
Mr.  Gushing,  Attorney-General,  on  the  26th  of  September,  1853,  and  a 
bill  is  now  i)ending  before  Congress  for  the  better  adjustment  of  the 
matters  in  controversy.  [By  act  of  Congress,  passed  February  28, 1855, 
$7,750,000  was  appropriated,  subject  to  certain  arrangements,  siuce 
acceded  to  by  Texas,  for  the  payment  of  Texan  claims.  United  States 
Statutes  at  Large,  vol.  10,  p.  617.] 

"  Tlie  reports  of  these  officers  are  confined  to  the  proper  coiistiu(;tion 
of  acts  of  Congress,  assented  to  by  Texas,  in  reference  to  their  lands 

20 


CHAP.  I.]  BURDENS    PASS    TO    NEW    SOVEEEIGN.  [§  5. 

and  debts.  It  did  not  become  necessary  to  discuss  the  question  of  the 
liability  of  the  United  States  for  the  payment  of  the  debts,  and  such 
discussion  was  expressly  waived  by  them  in  considering  the  subject. 
The  tendency  of  Mr.  Cushing's  opinion,  so  far  as  his  views  can  be 
gathered,  is  to  establish  the  liability  of  the  United  States  for  these 
debts  in  part.  He  says,  however,  that  it '  by  no  moans  follows,  from  the 
action  of  the  United  States,  in  providing  for  the  payment  of  a  j^ortion 
of  the  debts  of  Texas  from  the  proceeds  of  the  lands,  the  Government 
have  assumed  any  liability  thereby,  or  impliedlj"  recognized  any  liability 
on  their  part,  or  that  any  less  readiness  will  be  shown  by  Texas  to  fulfill 
the  engagement,  in  regard  to  her  debts,  contained  in  her  compact  of 
admission  to  the  Union.' 

"  I  have  thus  recited  at  length  the  facts  relating  to  the  indebtedness 
of  Texas  by  these  bonds ;  the  compact  between  the  two  Governments, 
in  relation  to  this  indebtedness,  on  the  admission  of  Texas  into  the 
Union,  and  the  act  of  Congress  and  measures  since  had  and  now  pend- 
ing npon  the  subject,  in  order  to  show  the  position  in  which  these  claims 
have  been  regarded. 

"  It  appears,  then,  that  at  the  time  of  the  union  of  these  Govern- 
ments, and  from  that  time  to  the  present,  including  the  period  of  the 
session  of  this  commission,  the  subject  of  these  claims  has  been  con- 
sidered solely  as  a  matter  of  adjustment  between  the  United  States 
and  Texas. 

"The  indebtedness  of  Texas,  some  years  since,  was  conceded  to  be 
rising  $10,000,000.  Whether  the  United  States  should  be  liable  for 
this  indebtedness  I  do  not  feel  called  upon  to  decide.  It  is  clear  Texas 
is  not  exonerated  from  the  debt,  and  the  United  States  has  manifested 
a  strong  disposition  to  bring  about  its  adjustment. 

"My  difficulty  in  this  case  is,  that  nothing  has  been  shown  to  us 
bringing  it  within  our  jurisdiction,  under  the  convention  of  1853. 

"There has  been  no  evidence  that  claim  has  been  made  on  the  United 
States  through  the  agency  of  the  J^ritish  Government,  for  the  payment 
of  this  class  of  debts.  Moreover,  it  has  not  been  the  policy  of  the 
ministers  of  either  Government  to  interfere  in  behalf  of  their  citizens, 
in  the  case  of  deferred  payment  of  loans  to  other  Governments ;  cer- 
tainly  not  as  between  Great  Britain  and  the  United  States. 

"This  question  had  not  been  brought  to  the  notice  of  either  Govern- 
ment, or  been  made  a  matter  of  correspondence  and  difficulty  between 
them,  neither  was  it  included  in  any  list  of  unsettled  claims  at  the  date  of 
the  convention. 

"It  is  clear,  therefore,  to  my  mind,  for  these  reasons,  and  from  the 
contemporaneous  proceedings  between  th<j  United  States  Government 
and  Texas  as  to  these  claims,  that  they  had  not  been  considered  mat- 
ters of  international  controversy  with  Great  Britain,  and  were  not, 
within  the  intent  of  either  contracting  party,  embraced  among  the  out- 
standing claims  to  be  acted  upon  by  this  commission." 

21 


§  5.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

Mr.  Hornby,  the  British  commissioner,  dissenting  from  this  con- 
clusion, the  case  was  referred  to  the  umpire,  Mr.  Bates,  wlio  "held  that 
cases  of  this  description  were  not  included  among  the  unsettled  claims 
that  had  received  the  cognizance  of  the  Governments,  or  were  de- 
signed to  be  embraced  within  the  provisions  of  the  convention,  and 
were,  therefore,  not  within  the  jurisdiction  of  the  commission." 

Report  of  the  claims  conimissiou  established  under  the  couvention  of  1853, 

with  Great  Britain,  pp.  406-409,  426. 
As  to  annexation  of  Texas,  see  infra,  §§  70,72,  154. 

"By  the  annexation  of  Texas  to  the  United  States,  the  power  to 
lay  and  collect  duties  on  imports  passed  to  the  latter :  but  Texas  re- 
tained her  public  lands,  pledged  to  the  payment  of  her  debts;  and  the 
act  of  annexation  declared  that  they  should  in  no  event  be  a  charge 
on  the  United  States.  Afterwards,  the  United  States  took  portions  of 
those  public  lands,  agreeing  to  pay  therefor  ten  millions  of  dollars, 
half  to  be  retained  until  the  holders  of  the  bonds  of  Texas,  for  which 
her  customs  duties  were  pledged,  should  release  their  claims.  By  a 
later  act  the  United  States  reserved  three-quarters  of  the  sum,  to  be 
paid  ])ro  rata  among  the  bondholders  on  their  releasing  their  claims. 
Some  of  these  boudliolders  were  British  subjects ;  and  the  claims  of 
one  (James  Holford)  were  submitted  to  the  mixed  commission  estab- 
lished under  the  convention  of  February  8,  1853 ;  but  the  commission 
decided  that  the  claims  were  not  within  the  jurisdiction  of  the  com- 
mission, as  they  had  never  been  matter  of  diplomatic  demand  by  Great 
Britain  on  the  United  States.  [Eeport  of  the  commission  under  the 
convention  of  1853,  382-426.     U.  S.  laws,  v,  797 ;  viii,  446;  x,  617.] 

"It certainly  would  not  be  satisfactory  to  say  that  the  United  States 
discharges  its  obligation  to  the  creditors  of  Texas,  to  whom  her  cus- 
toms were  pledged,  by  paying  only  the  amount  of  the  customs  re- 
ceived. The  United  States  determines  what  those  duties  shall  be,  in 
reference  to  the  interests  and  policy  of  the  whole  Eepublic.  The  con- 
dition of  Texas  is  changed  by  her  annexation.  The  new  government 
has  a  large  control  over  the  material  resources  of  the  inhabitants,  in 
the  way  of  internal  revenues,  excise  or  direct  taxation,  in  its  demands 
on  the  services  of  the  people,  and  in  the  debts  it  can  impose  ;  in  fact, 
the  entire  public  system  of  Texas  has  passed  into  other  hands,  and  no 
such  state  of  things  any  longer  exists  as  that  to  which  the  creditor 
looked.  It  may  be  better  or  worse,  but  it  is  not  the  same ;  and,  if  the 
duties  laid  by  the  United  States  and  collected  in  Texan  ports  did  not 
in  fact  pay  the  debts,  it  would  be  unjust  for  the  United  States  to  limit 
the  payment  of  the  creditor  to  them.  The  truth  is,  by  the  annexation 
the  United  States  changed  the  nature  of  the  thing  pledged,  and  is 
bound  generally  to  do  equity  to  the  creditor. 

"In  the  separations  and  rearrangements  of  nations  in  Europe,  special 
provisions  are  usually  made  for  the  payment  of  public  debts;  and  the 
principle  seems  admitted  that,  in  case  of  a  division  of  a  state,  each 
new  state  is  bound  for  the  whole  debt  contracted  by  the  former;  and, 
in  case  of  a  union  of  states,  it  seems  equally  clear  that,  as  the  whole 
must  defend  the  part  in  war,  which  is  the  international  process  of  attach- 
ment; it  must  practically  pay  the  debt,  although  the  foreign  power  may 
look  only  to  the  people  and  land  of  the  state  which  made  the  contract. 
The  formation  of  the  new  states  so  alters  the  nature  of  all  the  securities 

22 


CHAP.  I.J  BURDENS    PASS    TO    NEW    SOVEREIGN.  [§  5. 

the  creditor  looked  to,  that  the  new  state  has  a  general  obligation  to 
see  that  he  does  not  suffer  by  the  change." 

DancVs  Wheaton,  $  30,  note  18. 

See  President  Tyler's  fourth  annual  message,  and  87  Ann.  Reg.,  273,  305;  and 
as  to  Texas,  see  infra,  $^  70,  72,  154. 

"The  liability  of  the  United  States  for  the  debts  of  Texas  came  before 
the  mixed  commission,  under  the  convention  with  England  of  1853,  in 
the  case  of  a  British  subject  who  had  received  before  the  annexation 
bonds  secured  by  a  pledge  of  the  faith  and  revenue  of  Texas.  It  was 
disposed  of  on  the  ground  that  never  having  been  made  a  subject  for 
international  interposition  against  the  United  States,  it  did  not  fall 
within  the  scope  of  the  convention;  but  it  seemed  to  be  admitted  that 
the  liability  of  the  United  States,  if  any,  aro.^^e,  not  from  the  merger, 
but  from  the  transfer,  under  the  Constitution  of  the  United  States,  to 
the  Federal  Government  of  the  duties  on  imi)orts.  It  was  said  by  the 
American  commissioner,  in  announcing  his  opinion,  that  it  was  an  in- 
accurate view  of  the  case  to  regard  this  annexation  as  an  entire  absorp- 
tion of  one  nation  and  its  revenues  by  another.  'Texas  is  still  a  sov- 
ereign State,  with  all  the  rights  and  capacities  of  government,  except 
that  her  international  relations  are  controlled  by  the  United  States,  and 
she  has  transferred  to  the  United  States  her  right  of  duties  on  imports.' 
And  he  seemed  to  consider  any  claim  arising  from  the  previous  pledge 
of  such  duties  to  be  limited  to  their  value.  The  British  commissioner 
held  that  'the  obligation  of  Texas  to  pay  her  debts  is  not  in  dispute,  nor 
has  it  been  argued  that  the  mere  act  of  her  annexation  to  the  United 
States  has  transferred  her  liabilities  to  the  Federal  Government,  though 
certainly,  as  regards  foreign  governments,  the  United  States  is  now 
bound  to  see  that  the  obligations  of  Texas  are  fulfilled.  It  is  the  trans- 
fer of  the  integral  revenues  of  Texas  to  the  Federal  Government  that 
is  relied  on  as  creating  the  new  liability.'  Decisions  of  the  commission 
of  claims  under  the  convention  of  1853,  pp.  405-420." 

Lawrence's  Wheaton,  ed.  1863,  p.  54,  note. 

As  to  public  debt  of  Texas,  see  papers  connected  with  House  Mis.  Doc.  No.  17, 

33d  Cong.,  2d  sess. 
As  to  effect  of  revolution  on  obligations,  see  infra,  ^^  137,240. 
As  to  effect  of  a  treaty  of  cession  as  a  deed  of  the  ceded  territory  by  its  former 

sovereign,  see  Foster  v.  Neilson,  2  Pet.,  253,307;  U.  S.  v.  Arredondo,  6  id. 

691,738;  infra,  $  UB,  supra,  §  4. 
For  a  general  discussion  of  the  effect  of  the  cession  of  Florida  to  the  United 

States  under  the  treaty  of  1819,  see  Mitchel  v.  United  States,  9  Peters,  711 ; 

infra,  $  161. 

"  While  it  may  be  true  that  as  a  general  rule  when  one  country  is 
absorbed  in  another,  the  treaties  of  perhaps  the  more  inconsiderable 
of  the  two  are  often  regarded  as  annulled  because  of  the  convenience 
and  the  interests  of  other  states,  which  lead  them  to  regard  such  an- 
nuUment  with  favor  as  tending  to  their  own  advantage,  nevertheless 
it  is  believed  that  the  absorption  of  a  state  is  not  always  attended  by 
an  admitted  annulment  of  its  treaties.  The  union  between  the  United 
States  and  Texas,  to  which  you  refer,  was  effected  by  the  legislation 
of  the  parties.     It  necessarily  canceled  the  treaties  between  Texas 

23 


§  5a.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

antl  foreign  powers,  so  far  at  least  as  those  treaties  wore  inconsistent 
with  the  Constitution  of  this  country,  which  requires  customs  duties 
to  be  uniform  throughout  the  United  States." 

Mr.   Fish,    Sec.    of  State,    to  Aristarchi    Bey,    Sept.    18,   1876.     MSS.   Notes, 

Turkey. 
As  to  Texas,  see  further,  infra,  §  72,  et  neq.,  ^  154. 
As  to  effect  of  annexation  ou  treaties,  see  infra,  ^  36. 

Chili,  in  taking  possession,  at  the  close  of  the  late  war  with  Peru,  of 
the  guano  deposits  belonging  to  Peru,  took  them  subject  only  to  such 
liens  as  were  binding  under  Peruvian  law  at  the  time  of  cession. 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cowie,  June  10, 1885.     MSS.  Dom.  Let. 

By  the  formation  of  the  Xorth  German  Union,  after  the  battle  of 
Sadowa,  the  entire  navy  of  the  union  was  placed  under  the  command 
of  Prussia.  It  was  held  that  the  provision  of  the  treaty  of  May  1, 
1828,  between  the  United  States  and  Prussia,  for  the  arrest  of  desert- 
ers from  the  public  vessels  of  the  resijective  countries,  applied  to  public 
vessels  sailing  undej  the  flag  of  the  North  German  Union. 

12  Op.,  463,  Evarts,  1868. 

VI.    BUT  SUCH  COUNTRY  NOT  AFFECTED   BY  ACTS   OF  PRIOR  SOVER- 
EIGN AFTER    CESSION. 

§  5a. 

Grants  made  by  the  Spanish  Government  in  the  Mississippi  Terri- 
tory after  the  ratification  of  the  treaty  by  which  the  land  was  ceded  to 
the  United  States  are  void;  and,  though  a  patent  were  dated  before, 
unless  delivered  before,  it  fails  to  carry  title. 
1  Op.,  108,  Lincoln,  1802. 

Grants  of  contested  territory  made  flagrante  hello  by  the  party  who 
fails,  can  only  derive  validity  from  treaty  stipulations. 
Harcourt  v.  Gaillard,  12  Wheaton,  523. 

An  adjudication  as  to  title  to  certain  lauds  in  Louisiana,  made  by 
a  Spanish  tribunal  in  that  territory  after  its  cession  to  the  United 
States,  but  before  actual  possession  had  been  surrendered,  the  terri- 
tory being  de  facto  in  the  possession  of  Spain,  and  subject  to  Spanish 
laws,  was  held  valid  as  the  adjudication  of  a  competent  tribunal  hav- 
ing jurisdiction  of  the  case. 

Keene  r.  McDonough,  8  Peters,  308. 

The  authorities  of  Spain  had  power  to  make  grants  of  the  iiublic 
domain  in  Florida  in  accordance  with  their  own  ideas  of  the  merits  of 
the  grantee,  and  the  court  can  only  consider  the  questions  whether  a 
grant  was  made  and  what  was  its  legal  effect. 

U.  S.r.  Hanson,  16  Peters,  196  ;  U.  S.  v.  Acosta,  1  Howard,  24. 
24 


CHAP.  I.]  EX-SOVEREIGN    CANNOT   GIVE    TITLES.  [§  6a. 

G-rants  made  bj-  the  Spanish  authorities  of  lands  in  Louisiana,  after 
its  cession  to  France,  and  before  its  cession  by  the  latter  to  the  United 
States,  are  void. 

U.  S.  V.  Eeynes,  9  Howard,  1-27;  Davis  v.  Concordia,  id.,  280. 

Grants  made  by  the  Spanish  authorities  in  territory  which,  upon  the 
subsequent  settlement  of  a  disputed  boundary  line,  was  determined  to 
belong  to  one  of  the- United  States,  are  void. 

Robinson  v.  Minor,  10  Howard,  G27. 

Grants  made  by  the  French  authorities  in  Louisiana  after  the  treaty 
of  Fontainebleau  are  void,  unless  continued  possession  laid  a  founda- 
tion for  presuming  a  confirmation  by  the  authorities  of  Spain. 
U.  S.  r.  Pilletin,  13  Howard,  9. 

Conditions  which  are  attached  to  a  grant  by  a  prior  sovereign,  and 
which  are  inconsistent  witli  the  policy  of  the  United  States,  will  not  be 
enforced  by  the  United  States  after  the  conquest  of  the  territory  con- 
taining the  land  granted. 

U.  S.  V.  Vaca,  18  Howard,  556. 

A  grant  of  lands  in  California,  while  it  was  a  Mexican  province,  made 
by  the  chief  of  an  administration,  during  an  intestine  war,  when  he  was 
in  flight  from  the  seat  of  Government,  and  his  cause,  soon  afterwards 
completely  overthrown,  in  extremity,  cannot  be  sustained,  its  validity 
never  having  been  acknowledged  by  the  grantor's  successors,  and  no 
sanction  ever  having  been  given  it  by  the  United  States. 
U.  S.  V.  Sutter,  21  Howard,  170.     U.  S.  v.  Rose,  23  id.,  262. 

The  authority  and  jurisdiction  of  Mexican  officials  in  California  are, 
to  be  regarded  as  having  ceased  on  the  7th  of  July,  1846,  the  political 
department  of  the  Government  of  the  United  States  having  designated 
that  as  the  day  when  the  conquest  of  California  was  completed  and  the 
Mexican  officials  displaced. 

U.  S.  I'.  Yorba,  1  Wallace.  412.     (See  Stearns  v.  U.  S.,  G  id. ,'^89.     U.  S.  v.  Pico, 
•    23  Howard,  321.) 

The  fact  that  Mexico  declared  through  her  commissioners  who  nego- 
tiated the  treaty  of  Guadalupe- Hidalgo  that  no  grants  of  land  were 
issued  by  the  Mexican  governors  of  California  after  May  13,  1846,  does 
not  attect  grants  actually  made  after  that  date  by  those  governors,  while 
their  authority  and  jurisdiction  continued. 
U.  S.  V.  Yorba,  1  Wallace,  412. 

By  the  conquest  of  California  by  the  United  States  Mexican  rule 
was  displaced,  and  with  it  the  authority  of  Mexicans  officials  to  alienate 
the  public  domain.  Until  Congress  provided  a  government  for  the 
country  it  was  in  charge  of  military  governors,  who,  with  the  aid  of 
subordinate  officers,  exercised  municipal  authority;  but  the  power  to 

25 


§  6.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

grant  land  or  confirm  titles  was  never  vested  in  these  military  govern- 
ors, nor  in  any  person  appointed  by  them. 

Alexander  v.  Ronlet,  13  Wallace,  386.     (See  Mumford  t'.  Wardwell,  6  id.,  423.) 

"  Suffice  it  to  say,  that  the  Government  of  the  United  States,  ever 
since  the  acquisition  of  Louisinia,  in  its  legislative,  executive,  and 
judicial  departments,  has  always  held  in  theory,  and  by  repeated 
acts  of  Congress  and  judicial  decisions  asserted  in  practice,  that  the 
territory  between  the  Perdido  and  the  Iberville  rightfully  constituted  a 
portion  of  the  i)rovince  of  Louisiana,  as  ceded  by  France  to  the  United 
States  on  the  30th  of  April,  1803;  and  that  the  treaty  between  His 
Catholic  Majesty  and  the  United  States,  of  the  22d  February,  1819,  has, 
in  no  respect  whatever,  strengthened  the  claims  of  Spanish  grantees 
to  lands  embraced  within  these  limits.  This  being  the  fact,  it  there- 
fore follows,  as  a  necessary  consequence,  that  the  grant  by  the  Spanish 
intendeut,  Morales,  of  land  within  this  territory,  on  the  24th  March, 
1804,  had  been  made  after  the  date  of  the  Louisiana  treaty,  was  with- 
out authority  and  is  void." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Calderon  de  la  Barca,  July  27,  1847,  MSS. 

Notes,  Spain. 
See  infra,  $  148,  as  to  treaty  for  annexation  of  Louisiana. 

VII.  COLONIES  BECOMING  INDEPENDENT  RETAIN  THEIR  BOUNDARIES 

AND  OTHER  RIGHTS. 

§   6. 

"  It  has  never  been  admitted  by  the  United  States  that  they  acquired 
anything  by  way  of  cession  from  Great  Britain  by  that  treatj'  (of 
1783).  It  has  been  viewed  only  as  a' recognition  of  pre-existing  rights, 
and  on  that  principle  the.  soil  and  sovereignty  within  their  acknowl- 
edged limits  were  as  much  theirs  at  the  declaration  of  independence  as 
at  this  hour.  By  reference  to  the  treaty  it  will  be  found  that  it  amounts 
to  a  simple  recognition  of  the  independence  and  the  limits  of  the  United 
States,  without  any  language  purporting  a  cession  or  relinquishment 
of  right  on  the  part  of  Great  Britain.  In  the  last  article  of  the  treaty 
of  Ghent  will  b6  found  a  provision  respecting  grants  of  land  made  in 
the  islands  then  in  dispute  between  the  two  states,  which  affords  an 
illustration  of  this  doctrine.  Bj'  that  article  a  stipulation  is  made  in 
favor  of  grants  before  the  war,  but  none  for  those  which  were  made 
during  the  war." 

Johnson,  J.,  Harcourt  v.  Gaillard,  12  Wheaton,  .527. 
Henderson  r.  Poindexter's  Lessee,  12  Wheaton,  530. 
As  to  fisheries,  see  infra,  ^§  302  Jf. 

Under  the  treaty  with  Great  Britain  of  1783  the  United  States  suc- 
ceeded to  all  the  rights  in  that  part  of  old  Canada  which  now  forms  the 
26 


CHAP.  I.]      INDEPENDENCE  RETAINS  OLD  RIGHTS.         [§  6. 

State  of  Michigan  that  existed  in  the  King  of  France  prior  to  its  con- 
quest from  the  French  by  the  British  in  17G0;  and,  among  those  rights, 
to  that  of  dealing  with  the  seigniorial  estate  of  lauds  granted  out  as 
seigniories  by  the  said  king,  after  a  forfeiture  had  occurred  for  non- 
fulfillment of  the  conditions  of  the  fief. 

U.  S.  V.  Eepeutigny,  5  Wallace,  211. 

As  to  effect  of  treaty  of  iudeijeudence  see  further,  infra,  §  150. 

"  The  United  States  regard  it  as  an  established  principle  of  public 
law  and  of  international  right  that  when  a»  European  colony  in  America 
becomes  independent  it  succeeds  to  the  territorial  limits  of  the  colony 
as  it  stood  in  the  hands  of  the  parent  country." 

Mr.  Marcy,  Sue.  of  State,  to  Mr.  Dallas,  July  26,  1856.     MSS.  Instruc,  Great 
Britain. 

"  Whether  the  treaty  of  1783  was  the  origin  of  the  territorial  sovereign- 
ty of  the  States  of  the  American  Union  was  discussed  during  the  long 
pending  controversj'  in  relation  the  northeastern  boundary  of  Maine. 
The  British  secretary  of  state  for  foreign  affairs,  Lord  Aberdeen,  having 
assumed,  in  his  note  of  August  14,  1828,  as  the  ground  for  claiming 
exclusive  possession  till  the  award  of  the  arbiter  was  rendered,  that 
the  American  title  to  the  territory  in  dispute  was  to  be  deduced  solely 
from  the  treaty  of  peace,  it  was  replied: 

'  Before  the  independence  of  the  United  States  not  only  the  territory 
in  dispute  but  the  whole  of  the  adjoining  province  and  state  was  the 
property  of  a  common  sovereign.  *  *  *  To  use  the  words  of  a  cel- 
ebrated authority, '  When  a  nation  takes  possession  of  a  distant  country, 
and  settles  a  colony  there,  that  country,  though  separated  from  the 
principal  establishment  or  mother  country,  naturally  becomes  a  part 
of  the,  state  equally  with  its  ancient  possessions.' 

"  From  the  principle  here  established,  that  the  political  condition  of 
the  people  of  the  mother  country,  and  of  the  colonies  during  their  union, 
is  the  same,  the  inference  is  unavoidable  that  when  a  division  of  the 
emi)ire  takes  place  the  jirevious  rights  of  the  common  sovereign,  on 
matters  equally  affecting  both  of  the  states,  accrue  as  well  to  the  one 
as  to  the  other  of  them.  Mr.  Lawrence  to  Lord  Aberdeen,  August  22, 
1828.". 

Lawrence's  Wlieaton,  ed.  1863,  37,977. 

As  to  treaty  of  independence,  see- infra,  §  150. 

Ah  to  northwestern  boundary,  see  dispatch  No.  287  of  Mr.  Bancroft,  minister 

to  Prussia,  and  comments  of  Mr.  Fisli,  Secretary  of  State,  to  Mr.  Bancroft, 

November  27,  1871.     MSS.  Instruc,  Prussia.    Same  to  same,  March  29,  1872, 

id. 
As  to  treaty  with  Great  Britain  as  to  boundary,  see  infi-a,  §  150. 
As  to  Alaslia  boundary,  see  Mr.  Bayard  to  Mr.  Phelps,   November  20,    1885. 

MSS.  Instruc,  Great  Britain. 
As  to  treaty  purchasing  Alaska,  see  infra,  ^  159. 
As  to  Russian  claim  to  northwestern  waters,  see  infra,  §§  32,159. 
As  to  effect  of  treaties  of  annexation,  see  infra,  fi§  136,  140,  _^. 

27 


5»  7.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

VIII.  TITLE  OF  DE  FACTO  GOVERNMENT  TO  OBEDIENCE. 

§  7. 

The  legislatures  of  the  seceded  States  during  the  late  civil  war  are 
to  be  regarded,  even  by  the  Government  of  the  United  States,  as  exer- 
cising de  facto  authority  in  all  cases  in  which  their  domestic  power  was 
absolute,  Mud  in  which  their  action  did  not  impair  the  supremacy  of  the 
national  uatliority  or  the  rights  ot  citizens  under  the  Constitution  of 
the  United  States. 

Texas  v.  White,  7  Wall.,  700;  Horn  v.  Lockhart,  17  Wall.,  570;  Sprott  v.  U.  S., 
>20  Wall.,  459.     (See  U.  S.  v.  Insurauce  Company,  22  Wall.,  99.) 

Amelia  Island,  on  the  Florida  coast,  at  the  time  belonging  to  Spain, 
was  seized  and  occupied  by  the  United  States  in  1817,  on  the  ground 
that  this  was  necessary  to  root  out  certain  buccaneers  who  were  there 
congregated.  This  possession,  it  was  held,  could  not  be  contested  by 
a  third  power,  and  could  only  be  contested  by  Spain ;  and  hence  the 
seizure  by  the  United  States,  for  violation  of  its  territorial  law,  of  a 
vessel  of  a  third  power  within  the  territorial  waters  of  Amelia  Island 
could  not  be  contested  b;y  such  third  power. 

Mr.  Gallatin,  minister  at  Paris,  to  Baron  Pasquier,  French  minister  of  foreign 

affairs,  June  28,  1821:  2  Gallatin's  Works,  187. 
As  to  seizure  of  Amelia  Island,  see  infra,  (^  50. 

"  When  a  colony  is  in  revolt,  and  before  its  independence  has  been 
acknowledged  by  the  parent  country,  the  colonial  territory  belongs,  in 
the  sense  of  revolutionary  right,  to  the  former,  and  in  that  of  legitimacy, 
to  the  latter.  It  would  be  monstrous  to  contend  that  in  such  a  contin- 
gency the  colonial  territory  is  to  be  treated  as  derelict,  and  subject  to 
voluntary  acquisition  by  any  third  nation.  That  idea  is  abhorrent  to 
all  the  notions  of  right  which  constitute  the  international  code  of  Europe 
and  America. 

"  And  yet  the  assumption  that,  pending  a  war  of  colonial  revolution, 
all  territorial  rights  of  both  parties  to  the  war  become  extinguished  and 
the  colonial  territory  is  oj^en  to  seizure  by  anybody,  is  the  foundatiou  of 
most  of  the  disputed  pretensions  of  Great  Britain  in  Central  America." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Dallas,  July  26,  1856.      MSS.  I'astruc,  Great 

Britain. 
As  to  effect  of  revolution  on  treaties,  see  infra,  ^  137. 

"  It  is  the  duty  of  foreigners  to  avoid  all  interference  under  such  cir- 
cumstances (in  cases  of  civil  war),  and  to  submit  to  the  power  which  ex- 
ercises jurisdiction  over  the  places  where  they  resort,  and,  while  thus 
acting,  they  have  a  right  to  claim  protection,  and  also  to  be  exempted 
fi'om  all  vexatious  interruption,  when  the  ascendancy  of  the  parties  is 
temporarily  changed  by  the  events  of  the  contest.  Undoubtedly  the  con- 
sideraiions  you  urge  respecting  the  true  character  of  an  armed  opposi- 
tion to  a  government  are  entitled  to  much  weight.  There  may  be  local 
28 


CHAP.  I.]  DE    FACTO    GOVERNMENTS.  [§  7. 

insurrections,  armed  opposition  to  the  laws,  which  carry  with  them  none 
of  the  just  consequences  recognized  by  the  law  of  nations  as  growing 
out  of  a  state  of  civil  war.  Xo  fixed  principle  can  be  established  upon 
this  subject,  because  much  depends  upon  existing  circumstances.  Cases, 
as  they  arise,  must  be  determined  by  the  facts  which  they  present;  and 
the  avowed  objects  of  the  parties,  their  relative  strength,  the  progress 
they  respectively  make,  and  the  extent  of  the  movement,  as  well  as  other 
circumstances,  must  be  taken  into  view." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Osma,  May  22,  ld58.     MSS.  Notes,  Peru.    Supra, 
$  203. 

"  While  contending  parties  are  carrying  on  a  civil  war  those  por- 
tions of  the  country  in  the  ijossession  of  either  of  them  become  sub- 
ject to  its  jurisdiction,  and  the  persons  residing  there  owe  to  it  tempo- 
rary obedience.  But  when  such  possession  is  changed  by  the  events 
of  the  war  and  the  other  party  expels  its  opponents,  the  occupation  it 
acquires  carries  with  it  legitimate  authority,  and  the  right  to  assume 
and  exercise  the  functions  of  the  government.  But  it  carries  with  it 
no  right,  so  far,  at  any  rate,  as  foreigners  are  concerned,  to  give  a  retro- 
active effect  to  its  measures  and  expose  them  to  penalties  and  punish- 
ments and  their  property  to  forfeiture  for  acts  which  were  lawful  and- 
api)roved  by  the  existing  government  when  done." 

Ihid.     That  aliens  r.re  bound  to  local  allegiance,  see  infra,  $  203. 

"In  the  case  of  the  controversy  between  the  United  States  and 
Peru,  growing  out  of  the  capture  and  confiscation  of  two  American 
vessels  for  taking  guano  under  the  authority  of  a  revolutionary  gov- 
ernment in  temporary  jjossession  of  some  of  the  seaports  and  guano 
deposits,  and  in  contravention  of  the  laws  of  Peru,  it  was  maintained 
by  the  administration  of  President  Buchanan  that  the  citizens  or  sub- 
jects of  a  foreign  nation  may  carry  on  commerce  with  the  portions  of 
a  country  in  the  hands  of  either  of  the  parties  to  a  civil  war,  and 
without  awaiting  any  action  on  the  part  of  their  own  Government,  nor 
in  such  case  can  they  be  subjected  to  capture  or  detention  by  the 
other  party,  unless  for  a  violation  of  neutral  obligations." 

Lawrence's  W^heatou,  ed.  1863,  p.  575. 

"  I  transmit  a  copy  of  a  note  of  yesterday,  addressed  to  this  De- 
partment by  Sir  Edward  Thornton,  Her  Britannic  Majesty's  envoy 
extraordinary  and  minister  plenipotentiary  accredited  to  this  Gov- 
ernment, requesting  that  you  may  be  authorized  to  use  youi  good 
offices  towards  preventing  the  exaction  by  the  Mexican  Government 
of  duties  on  goods  imported  by  Messrs.  Kelly,  at  Mazatlan,  which 
duties  had  previously  been  paid  to  insurgents  there.  You  will  take 
that  course  accordingly.  It  is  difficult  to  understand  upon  what 
ground  of  equity  or  public  law  such  duties  can  be  claimed.  The  ob- 
ligation of  obedience  to  a  government  at  a  i^articular  place  in  a  coun- 
try may  be  regarded  as  susj)euded,  at  least,  when  its  authority  is 
usurped,  and  is  due  to  the  usurpers  if  they  choose  to  exercise  it.  To 
require  a  repayment  of  duties  in  such  cases  is  tantamount  to  the  ex- 

29 


§  8.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

action  of  a  penalty  on  the  misfortune,  if  it  may  be  so  called,* of  re- 
maining and  carrying  on  business  in  a  port  where  the  authority  of  the 
govermnent  had  been  annulled.  The  pretension  is  analogous  to  that 
upon  which  vessels  have  been  captured  and  condemned  upon  a  charge 
of  violating  a  blockade  of  a  port  set  on  foot  by  a  proclamation  only, 
without  force  to  carry  it  into  effect. 

"  The  principle  that  duties  once  paid  in  a  part  of  the  territory  of  the 
country  in  possession  of  an  enemy  are  not  liable  again  to  be  paid 
when  the  enemy  is  expelled  or  withdraws,  was  solemnly  decided  by 
the  Supreme  Court  of  the  United  States  in  the  case  of  Eice,  4th 
Wheaton,  page  246. 

"  Since  the  close  of  the  civil  war  in  this  country  suits  have  been 
brought  against  importers  for  duties  on  merchandise  paid  to  insur- 
gent authorities.  Those  suits,  however,  have  been  discontinued,  that 
proceeding  probably  having  been  influenced  by  the  judgment  of  the 
Supreme  Court  adverted  to." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  -Nelspn,  February  11,  1873.     MSS.  Instruc,  Mex. ; 
For.  Eel.,  1873. 

The  United  States,  as  their  rule  of  public  law,  recognize  governments 
de  facto,  and  also  governing  persons  de  facto,  without  scrutiny  of  the 
question  of  legitimacy  of  origin  or  accession. 
7  Op.,  582,  Gushing  (1855).     (See  infra,  §  203.) 

IX.  LAW  OF  KATIOXS  PAST  OF  LAW  OF  LAND. 

§  8. 

The  laws  of  the  United  States  ought  not,  if  it  be  avoidable,  so  to  be 
construed  as  to  infract  the  coinraou  principles  and  usages  of  nations, 
or  the  general  doctrines  of  international  law. 
Talbot  V.  Seaman,  1  Cranch,  1. 

Even  as  to  a  municipal  matter  the  lex  fori  should  be  so  construed  as  to 
conform  to  the  law  of  nations  unless  the  contrary  be  expressly  prescribed. 

The  Amelia,  1   Cranch,   1;    4  Dall.,  34;    Murray  v.  The  Channiug  Betsy,  2 
Cranch,  (i4,  118 ;  Little  v.  Barreme,  2  Cranch,  170. 

An  act  of  Congress  ought  never  to  be  construed  to  violate  the  law  of 
nations  if  any  other  possible  construction  remains,  nor  should  it  be 
construed  to  violate  neutfal  rights  or  to  affect  neutral  commerce  fur- 
ther than  is  warranted  by  the  law  of  uatious,  as  understood  in  this 
country. 

Murray  v.  Charming  Betsy,  2  Cranjch,  118. 

The  law  of  nations  is  part  of  the  municipal  law  of  Pennsyh  ania. 

Res.  V.  De  Long  Champs,  1  Dall.,  111. 

The  law  of  nations  is  the  great  source  from  which  we  derive  those 
rules  respecting  belligerent  and  neutral  rights  svhich  are  recognized 
30 


CHAP.  I.]       LAW    OF    NATIONS    PART    OF    LAW    OF    LAND.  [§  8. 

by  all  civilized  aud  commercial  states  throughout  Europe  and  America. 
The  law  of  nations  is  in  part  unwritten  and  in  part  conventional.  To 
ascertain  that  which  is  unwritten,  we  resort  to  the  great  principles  of 
reason  and  justice;  but,  as  these  principles  will  be  differently  under- 
stood by  different  natious  under  different  circumstances,  we  consider 
them  as  being  in  some  degree  fixed  and  rendered  stable  by  judicial 
decisions.  The  decisions  of  the  courts  of  every  country,  so  far  as  they 
are  founded  on  a  law  common  to  every  country,  will  be  received,  not 
as  authority,  but  with  respect,  and  will  be  considered  in  adopting  the 
rule  which  is  to  prevail  here. 

Thirty  hogsheads  of  sugar  v.  Boyle,  9  Cranch,  191. 

The  law  of  nations  should  be  respected  by  the  Federal  cofirts  as  a 
part  of  the  law  of  the  land. 
The  Nereide,  9  Cranch,  388. 

The  intercourse  of  the  United  States  with  foreign  nations,  and  the 
policy  in  regard  to  them,  being  placed  by  the  Constitution  in  the  hands 
of  the  Federal  Government,  its  decisions  upon  these  subjects  are,  by 
a  universally  acknowledged  principle  of  international  law,  obligatory 
upon  every  citizen  of  the  Union. 

Kenuett  v.  Chambers,  14  Howard,  38. 

The  maritime  law  (unless  part  of  international  law)  is  only  so  far  op- 
erative as  law  in  any  country  as  it  is  adopted  by  the  laws  and  usages 
of  that  country.  The  principles  laid  down  on  this  subject  in  Norwich 
Company  v.  Wright  (13  Wall.,  104),  and  in  The  Lottawana  (21  «VZ.,  558), 
reasserted  and  affirmed. 

The  Scotland,  105  U.  S.,  24. 

The  law  of  nations,  unlike  foreign  municii)al  laws,  does  not  have  to 
be  proved  as  a  fact. 

The  Scotia,  14  Wallace,  170 

"  The  law  of  nations  makes  an  integral  part  *  *  *  of  the  laws 
of  the  land." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Genet,  June  5, 1793.  MSS.  Notes,  For.  Leg. 
Wait's  Am.  St.  Pap.,  30.     1  Am.  St.  Pap.,  F.  E.,  150. 

"Every  nation,  on  being  received,  at  her  own  request,  into  the  circle 
of  civilized  governments,  must  understand  that  she  not  only  attains 
rights  of  sovereignty  and  the  dignity  of  national  character,  but  that 
she  binds  herself  also  to  the  strict  and  faithful  observance  of  all  those 
principles,  laws,  and  usages  which  have  obtained  currency  among  civ- 
ilized states,  and  which  have  for  their  object  the  mitigation  of  the 
miseries  of  war. 

"No  community  can  be  allowed  to  enjoy  the  benefit  of  national  char- 
acter in  modern  times  without  submitting  to  all  the  duties  which  that 
character  imj)oses.     A  Christian  x)eople  who  exercise  sovereign  power, 

31 


§  9.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  1. 

who  inak«  treaties,  maintain  (lii)loniatic  relations  with  other  states, 
and  who  should  yet  refuse  to  conduct  their  military  operations  accord- 
ing to  the  usages  uuiv'ersally  observed  by  such  states,  would  present 
a  character  singularly  inconsistent  and  anomalous.'' 

Mr.  Webster,  Sec.  of  State,  to  Mr  Thompsou,  April  15,  1842  ;  MSS.  Instruc,  Mex- 
ico ;  also  6  Webster's  Works,  437.     See  infra,  §  347  /. 

If  a  govenmeut  "  confesses  itself  unable  or  unwilling  to  conform 
to  those  international  obligations  ^'hich  must  exist  between  established 
governments  of  friendly  states,  it  would  thereby  confess  that  it  is  not 
entitled  to  be  regarded  or  recognized  as  a  sovereign  and  independent 
power. " 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  August  2,  1877,  MSS.  Instruc, 
Mexico. 

A  judicial  decree,  contravening  the  law  of  nations,  has  no  extraterri- 
torial force. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Brunetti,  October  23,  1878;  MSS.  notes,  Spain. 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  McLaue,  June  23, 1886  ;  MSS.  lust.,  France. 
rSee  infra,  6  329.  ) 

The  law  of  nations  is  considered  as  a  part  of  the  municipal  law  of 
each  state. 

5  Op.  (Appendix),  691,  Lincoln,  1802. 

International  law  is  founded  upon  natural  reason  and  justice,  the 
opinions  of  ''  writers  of  known  wisdom,  and  the  practice  of  civilized 
nations." 

9  Op.  350,  Black,  1859. 

X.  MUNICIPAL  LAWS  NOT  EXTRATEBEITOEIAL. 

§9. 

Municipal  variations  of  the  law  of  nations  have  no  extraterritorial 
effect. 

The  Resolution,  2Dall.,  1,  (Fed.  Ct.  App.  1781).  The  Nereide,  9  Cranch,  388. 
(See  Henfield's  case,  Whart.  St.Tr.,  49-66.) 

No  foreign  power  can  rightfully  erect  any  court  of  judicature  within 
the  United  States,  unless  by  force  of  a  treaty.     The  admiralty  jurisdic- 
tion exercised  by  cc  nsuls  of  France  in  the  United  States  is  not  of  right. 
Glass  V.  The  8looi>  Betsey,  B  Dallas,  6. 

Whatever  may  be  the  municipal  law  under  which  a  tribunal  acts,  if 
it  exercise  a  juii.sdiction  which  its  sovereign  is  not  allowed  by  the  laws 
of  nations  to  confer,  its  decrees  must  be  disregarded  out  of  the  domin- 
ions of  the  sovereign. 

hifra  §  329  a;  Rose  r.  Himely,  4  Cranch,  241.  But  see  Hudson  y.^Guestier,  6  id, 
2.85. 

As  to  territorial  supremacy,  see  aupra,  ^  1,   infra,  §  11a.    That   municipal 
neutrality  laws  are  not  extraterritorial,  acGinfra,  ^  403. 

32 


CHAP.  I.J  LIMITS    OF  •MUNICIPAL    LAWS.  [§  9. 

A  power  to  seize  for  a  violation  of  the  laws  of  tbe  country  is  anattri 
bute  of  sovereigntj',  and  is  to  be  exercised  within  the  limits  which  cir- 
cumscribe the  sovereign  i)ower  from  which  it  is  derived.  And  while 
the  rights  of  war  may  be  exercised  on  the  high  seas,  a  seizure  beyond 
the  limits  of  territorial  jurisdiction  for  a  breach  of  a  municipal  regula- 
tion is  not  warranted  by  international  law. 
Eose  V.  Himely,  4  Crauch,  241.     (Infra,  $  403.) 

The  municipal  laws  of  one  nation  do  not  extend,  in  their  operation, 
beyond  its  own  territory,  except  as  regards  its  own  citizens  or  subjects. 

The  Apollon,  y  Wheat.,  3(52. 

One  country  cannot  execute  the  penal  laws  of  another. 

The  Antelope,  10  Wheaton,  66. 

As  to  jurisdiction  of  oftenses  on  shipboard,  and  in  particular  as  to  Jonathan 
Eobbins'  case,  see  infra,  ^  271a. 

As  a  general  proposition  the  laws  of  one  country  have  in  themselves 
no  extraterritorial  force,  and  whatever  force  they  are  permitted  to 
have  in  foreign  countries  depends  upon  the  comity  of  nations,  regulated 
by  a  sense  of  their  own  interests  and  public  convenience. 
Le  Roy  v.  Crowninshield,  2  Mason,  151. 

The  presumptions  indulged  in  support  of  judgments  of  superior  courts 
of  general  jurisdiction  are  limited  to  jurisdiction  over  persons  within 
their  territorial  limits  ;  persons  who  can  be  reached  by  their  process. 

Galpin  v.  Page,  18  Wallace,  350. 

Under  the  statute  law  of  France,  which  provides  that  a  father-in-law 
and  mother-in-law  must  make  allowance  to  a  son-in-law  who  is  in  need, 
so  long  as  a  child  of  the  marriage  is  living,  a  son-in-law,  a  French 
citizen,  obtained  a  decree  in  the  French  courts  for  an  allowance  against 
his  father-in-law  and  mother-in-law  who  were  American  citizens,  all 
the  parties  then  residing  in  France.  The  son-in-law  .subsequently 
brought  an  action  of  debt  on  the  decree,  in  the  courts  of  the  United 
States,  to  recover  the  amount  of  the  decreed  payment,  which  had  not 
been  paid.     It  was  ruled  : 

(1)  That  the  suit  could  not  be  maintained.  The  laws  of  France, 
upon  which  such  decrees  were  made,  are  local  in  their  nature  and 
operation.  They  are  designed  to  regulate  the  domestic  relations  of 
those  who  reside  there,  and  to  ])rotect  the  public  against  pauperism. 
They  have  no  extraterritorial  significance,  but  must  be  executed  upon 
persons  and  property  within  their  jurisdiction. 

(2)  Adjudications  of  the  French  tribunals  under  these  laws  are  in 
the  nature  of  local  police  regulations,  like  orders  of  filiation  and  orders 
made  under  local  statutes  to  guard  against  pauperism,  and  are  not  of 
extra-territorial  operation,  like  judgments  for  claims  founded  upon 
contracts  or  other  private  rights  everywhere  recognized. 

De  Brimout  v.  Penniiuan,  10  Blatchf.,  436. 

S.  Mis.  162— YOL,  I 3  33 


§  9.]  SOVEREIGNTY  oVeK  LAND,  [CHAP.  I. 

Municipal  laws  "have  no  controlling  operation  beyond  the  territorial 
limits  of  the  countries  enacting  them."  Hence,  in  questions  between 
two  independent  nations,  "  neither  has  a  right  to  appeal  to  its  own 
municipal  laws  for  the  rules  to  settle  the  matter  in  dispute  which  oc- 
curred within  the  jurisdiction  of  a  third  independent  power.'' 

Mr,  Marcy,  Sec.  of  State,  to  Mr.  Hiilseman,  Sept.  20, 1853.     MSS.     Notes,  Aust. 
(Koszta  case).     See  infra,  $  198. 

"  It  cannot  be  expected  that  any  Government  would  go  so  far  as  to 
yield  to  a  pretension  of  a  foreign  power  to  revise  and  review  the  proceed- 
ings of  its  courts  under  the  claim  of  an  international  right  to  correct 
errors  therein,  either  in  respect  to  the  application  of  principles  of  law, 
or  the  application  of  facts  as  evidence  in  cases  where  the  citizens  of 
such  foreign  power  have  been  convicted.  It  certainly  could  not  be 
expected  that  such  a  claim  would  be  allowed  before  the  party  making 
it  had  first  presented  a  clear  case  prima  facie  of  wilful  denial  of  justice 
or  a  deliberate  perversion  of  judicial  forms  for  the  purpose  of  oppres- 
sion." 

Mr.  Maxcy,  Sec.  of  State,  to  Mr.  Jackson,  Apr.  6,  1855.     MBS.  Inst.   Austria. 
Infra,  $241/. 

"  A  certificate  of  discharge  from  a  court  in  bankruptcy  can  have  no 
validity  in  a  foreign  country  as  against  a  foreign  creditor  representing 
a  debt  contracted  in  a  foreign  country  unless  he  has  brought  his  claim 
within  the  jurisdiction  of  the  courts  of  the  United  States  by  proving  it, 
and  thus  putting  himself  in  a  position  to  share  in  the  dividends  (infra, 
§  329a).  Whether,  in  case  he  does  so  prove  it,  such  certificate  will  have 
weight  in  a  foreign  country  will  depend  upon  the  local  laws  in  such 
country,  whose  courts  will  undoubtedly  act  with  due  regard  to  the  comity 
of  nations." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Eiger,  October  21,  1869.     MSS.  Dom.  Let.     (See 
Whart.  Conf.  of  Laws,  U  531,  804.) 

"  While  there  is  no  special  statute  authorizing  the  Executive  to  grant 
permission  to  land  a  cable  on  the  coast  of  the  United  States,  neither  is 
there  any  statute  prohibiting  such  action,  and  I  find  oH  examination  of 
the  records  of  this  Department  that  in  1875  conditional  authority  was 
given  to  land  a  French  cable  at  Rye  Beach,  1^.  H.,  and  that  in  1879 
permission  was  given  to  land  a  cable  on  Cape  Cod.  These  precedents 
seem  to  justify  a  similar  concession  to  the  Central  and  South  American 
Company,  which  there  is  the  less  hesitation  in  according,  as  it  is  a 
corporation  organized  under  the  laws  of  a  State  of  the  United  States, 
and  purposes  to  land  its  cable  on  the  shores  of  the  State  which 
created  it. 

"The  authority  of  the  executive  branch  of  the  Government  to  grant 
this  permission  is  exercised  only  in  the  absence  of  legislation  by  Con- 
gress regulating  the  subject,  and  concessions  of  the  privilege  heretofore 
34 


CHAP.  I.]  LIMITS    OF    MUNICIPAL    LAWS.  [§  9. 

have  been  subject  to  such  future  action  by  Congress  in  the  matter  as  it 
may  at  any  time  take." 

Mr.  Davis,  Acting  Sec.  of  State,  to  Mr.  Thompson,  October  10, 1882.     MSS.  Dom. 

Let.     (See  to  the  same  effect,  Mr.  Frelinghuyseu,  Sec.  of  State,  to  Messrs. 

Mackay  and  Bennett,  December  5,  1883,     MSS.  Dom.  Let.) 
As  to  international  telegraph  lines  through  Central  America  and  along  the 

northern  Pacific  shores,  see  circular  of  Mr.  Seward,  Sec.  of  State,  August 

18,  1864.    MSS.  Instruct.  Am.  States. 

"  No  sovereignty  can  extend  its  process  beyond  its  own  territorial 
limits  so  as  to  subject  either  persons  or  property  to  its  judicial  decisions, 
and  every  exertion  of  authority  of  this  sort  beyond  its  limits  is  a  mere 
nullity,  and  incapable  of  binding  such  persons  or  property  in  any  other 
tribunals." 

Halleck  Int.  Law,  cited  by  Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Morgan, 

May  17,  1884.     MSS.  Inst.,  Mexico;  For. Eel,.  x884. 
See  further  Whart.  Conf.  of  Laws,  §$  734  jf;  infra,  $  406.    As  to  nonubiquity  of 
prize  court  action,  see  injra,  §  329a. 

While,  however,  statutes,  as  a  rule,  have  no  extraterritorial  effect  by 
their  own  vigor,  it  is  otherwise  when  they  are  part  of  a  system  of  inter- 
antional  law  which  is  adopted  as  part  of  the  law  of  the  land.  (See  supra, 
§  8.)  Nor  is  this  incorporation  of  international  law  in  the  law  of  the 
land  confined  merely  to  public  law.  It  extends  to  what  is  called  private 
international  law,  that  is,  international  law  which  affects  the  rights  of 
individuals.  Thus,  as  will  be  seen,  the  form  of  marriage  is  determined 
by  the  law  of  the  place  of  solemnization  {infra,  §  261) ;  personal  status  is 
in  some  cases  determined  by  the  law  of  domicil  (Whart.  Conf.  of  Laws, 
§  101,^),  while  contracts  as  to  their  mode  of  solemnization  are  gov- 
erned by  the  law  of  the  place  of  solemnization,  as  to  their  interpretation 
by  the  law  of  the  place  from  which  the  parties  drew  their  idioms,  and 
as  to  their  performance  by  the  law  of  the  place  of  performance.  Ibid., 
§393,#. 

That  statutory  limitations  as  to  piracy  bind  only  municipally,  see  infra,  $  382. 

That  municipal  expansions  or  restrictions  of  the  law  of  nations  have  no  extra- 
territorial effect,  see  infra,  $  402  and  402o. 

That  prize  courts  when  following  merely  municipal  law,  cease  to  be  interna- 
tionally authoritative,  see  infra,  $  369a. 

Defective  or  erroneous  municipal  legislation,  by  which  a  sovereign 
claims  to  be  unable  to  perform  his  international  obligations,  is  no  de- 
fense to  a  demand  by  another  sovereign  for  redress  for  a  violation  of 
international  duty.  This  position  was  taken  by  Great  Britain  against 
the  United  States  in  the  McLeod  case  {infra,  ^  21);  by  the  United  States 
against  France  in  respect  to  French  spoliations  {infra,  §§  130,  318) ;  by 
the  United  States  against  Great  Britain  in  respect  to  the  Alabama  and 
cognate  claims  {infra,  §  4()2a) ;  and  by  the  United  States  against  Mex- 
ico and  other  States,  in  denying  their  right  to  impose  by  statute  restric- 
tions or  disabilities  not  sustainable  in  international  law  on  citizens  of 
the  United  States  {infra,  §§  15, 176a). 

35 


§  10.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

"  Neither  goveruuient"  (France  or  the  United  States,  the  question  aris- 
ing at  the  time  of  the  refusal  of  the  French  chamber  of  de])uties  to 
make  appropriations  to  carry  out  the  treaty  for  payment  to  the  United 
States  of  French  spoliations)  "  has  anything  to  do  with  the  auxiliary 
legislative  measures  necessary,  on  the  part  of  the  other  state,  to  give 
effect  to  the  treaty.  The  nation  is  responsible  to  the  government  of 
the  other  nation  for  its  non-execution,  whether  the  failure  to  fulfill  it 
proceeds  from  the  omission  of  one  or  the  other  of  the  departments 
of  its  government  to  perform  its  duty  it  respect  to  it.  The  omission 
here  is  on  the  part  of  the  legislature ;  but  it  might  have  been  on 
the  part  of  the  judicial  department — the  court  of  cassation  might  have 
refused  to  render  some  judgment  necessary  to  give  effect  to  the'treaty. 
The  King  cannot  comi)el  the  Chambers,  neither  can  he  compel  the 
courts ;  but  the  nation  is  not  the  less  responsible  for  the  breach  of  faith 
thus  arising  out  of  the  discordant  action  of  the  international  machinery 
of  its  constitution." 

Mr.  Wheaton,  Miuister  at  Copenhagen,  to  Mr.  Butler,  Attorney-General,  Jan- 
uary 20,  1835,  adoi^ted  in  Lawrence's  Wheaton  (1863),  459 ;  and  quoted  also 
with  approval  in  Meier  on  Abschluss  von  Staatsvertragen,  Leipzig,  1874,  p. 
168. 


XL  DISTINCTIVE  RULE  AS  TO  TAXES. 
§  10. 

For  the  purpose  of  taxation,  some  kinds  of  personal  property  may 
have  a  situs  independent  of  the  domicil  of  the  owner;  e.  g.,  property 
which  has  a  visible  and  tangible  existence ;  or  public  securities  consist- 
ing of  State  bonds  and  bonds  of  municipal  bodies;  but  not  personal 
property,  such  as  bonds  and  debts  generally,  which  have  no  situs  inde- 
pendent of  the  domicil  of  the  owner. 

State  tax  on  foreign-held  bonds,  15  Wallace,  300. 

For  the  purposes  of  taxation,  a  debt  has  its  situs  at  the  residence  of 
the  creditor,  and  may  be  there  taxed. 

Kirtland  v.  Hotchkiss,  100  U.  S.,  491. 

"  So  far  as  the  question  of  taxation  is  concerned,  the  principles  are 
believed  to  be  quite  well  understood  which  ought  to  govern  the  ques- 
tion. 

"  That  citizens  of  the  United  States  who  choose  to  reside  in  Cuba 
must,  in  the  absence  of  treaty  provisions  or  other  exemptions,  bear  their 
just  and  honest  share  of  such  burdens,  by  way  of  taxation,  as  the  needs 
of  good  government  and  public  protection  require,  needs  no  argument. 

"The  right  of  taxation  is  an  attribute  of  sovereignty. 

"  The  right  is  admitted  but  complaints  are  based  on  the  fact  that  op- 
portunity is  taken  under  the  cover  of  a  right,  to  perpetrate  wrong  and 
injustice.     *     *     * 

"It  is  difficult  (for  instance)  to  call  it  a  rightful  exercise  of  the  sover- 
eign power  of  taxation,  to  require  an  individual  owner  of  an  estate  to 
erect  a  fort,  of  a  particular  and  specified  description,  on  his  estate,  at  his 
36 


CHAP.  I.]  TAXES:    FEDERAL    CONSTITUTION.  [§11- 

iiiclividiuil  cost,  or  to  require  him  to  construct  a  particular  line  of  tele- 
graph; and  when  such  things  are  done  by  an  arbitrary  order  of  a 
local  or  a  military  officer,  they  have  very  much  the  appearance  of  some- 
thing very  different  from  what  is  generally  recognized  as  taxation." 

Mr.  Fish,  Secretary  of  State,  to  Mr.  dishing,  May  22,  1876,  MSS.  Instruc, 
Spain.      See  infra,  §$  37,2:^0. 

XII.  DISTINCTIONS  UNDER  FEDERAL  CONSTITUTION. 

§11. 

The  several  States  which  compose  the  Union,  so  far  at  least  as  regards 
their  municipal  regulations,  became  entitled,  from  the  time  when  they 
declared  themselves  independent,  to  all  the  rights  and  powers  of  sover- 
eign States ;  and  among  those  rights  was  that  of  the  allegiance  of  their 
citizens. 

Mcllvaine  v.  Coxe's  Lessee,  4  Cranch,  209;  Inglis  v.  Trustees,  «fec.,  3  Peters,  99. 

In  the  Constitution  of  the  United  States  the  term  State  most  fre- 
quently expresses  the  combined  idea  of  people,  territorj"^,  and  govern- 
ment. A  State,  in  the  ordinary  sense  of  the  Constitution,  is  a  polit- 
ical community  of  free  citizens,  occupying  a  territory  of  defined  bound- 
aries and  organized  under  a  government  sanctioned  and  limited  by 
a  written  constitution,  and  established  by  the  consent  of  the  gov- 
erned. It  is  the  union  of  such  States,  under  a  common  Constitution, 
which  forms  the  distinct  and  greater  political  unit  which  that  Constitu- 
tion designates  as  the  United  States,  and  makes  of  the  people  and  States 
which  compose  it  one  people  and  one  country. 
Texas  v.  White,  7  Wall.,  700. 

Sovereignty  for  the  protection  of  rights  and  immunities  created  by 
or  dependent  upon  the  Constitution  rests  with  the  United  States. 
U.  S.  V.  Reese,  92  U.  S.,  214. 

Sovereignty  for  the  protection  of  the  rights  of  life  and  personal  liberty 
within  the  resi^ective  States  rests  with  the  States,  subject  to  the  quali- 
fications of  the  Constitution. 

U.  S.  V.  Cruikshauk,  92  U.  S.,  542. 

Correction  or  revision  of  the  action  of  State  courts  is  not  within  the 
province  of  the  Executive  of  the  Federal  Government,  however  much  h.e 
may  decline  to  give  executive  efficiency  to  their  judgments. 

Mr.  Seward  to  Mr.  Van  Limburg,  Sept.  30, 1862  ;  MSS.  Notes,  Netherlands. 

The  Secretary  of  State,  as  representing  the  Executive,  is  the  sole  au 
thority  to  whom  foreign  sovereigns  can  appeal  for  redress  for  injuries 
inflicted  on  their  subjects  within  one  of  the  States  of  the  American 
Union.     {Lifra,  §79.)     But  while  such  is  the  case,  such  sovereigns  will 
be  informed  by  the  Secretary  of  State  that  jn  the  United  States,  as  in 

37 


§  11a.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

all  governments  where  the  judiciary  and  the  executive  have  coordi 
nate  powers,  appeals  for  redress  in  such  cases  must  be  made  primarily 
to  the  local  judiciary,  and  that  the  Executive  of  the  United  States 
can  only  be  appealed  to  when  there  has  been  a  failure  of  justice,  after 
the  courts  have  been  duly  resorted  to.     {See  infra,  §§  230,  244,  329a.) 

Xni.   TERRITORY,  ASA  RULE,  INVIOLABLE. 

(1)  General  Principles. 

§  11a. 

No  sovereign,  according  to  modern  international  law,  can  exercise 
the  prerogatives  of  sovereignty  in  any  dominions  but  his  own. 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Ternant,  May  15,  1793.     MSS.  For  Leg. 
Notes;  1  Am.  State  Papers  (F.  R.),  147.     See  supra,  $§  1,  9. 

"Congress,  at  its  last  session,  passed  laws  which  authorized  the  Presi- 
dent to  aid  the  colonization  of  persons  of  certain  classes  of  African  de- 
rivation, with  their  consent,  in  some  tropical  country,  first  obtaining 
the  consent  of  the  Government  of  such  country  to  receive  such  settle- 
ments and  protect  them  in  all  the  rights  of  freemen.  The  execution  of 
these  laws  was  devolved  by  the  President  upon  the  honorable  the  Sec- 
retary of  the  Interior.  That  officer  is  understood  to  have  recognized 
the  honorable  Mr.  Pomeroy  as  an  agent  for  persons  belonging  to  the 
specified  classes,  to  aid  and  direct  them  in  the  choice  of  their  locations 
and  establishing  their  settlements.  The  general  instructions  which 
were  given  to  him  by  the  Secretary  of  the  Interior  expressly  inhibited 
Mr.  Pomeroy  from  attempting  to  make  such  location  and  settlement  in 
any  country  whatever,  without  first  having  obtained  the  consent  of  the 
Government  of  such  country  to  protect  the  proposed  settlement  of  such 
persons  there  with  all  the  rights  and  privileges  of  freemen. 

"About  the  time  when  those  instructions  were  in  course  of  prepara- 
tion, his  excellency  SeSor  Antonio  Jos6  de  Yrisarri,  minister  plenipo- 
tentiary of  the  Republics  of  Guatemala  and  Salvador  near  the  United 
States,  gave  notice  to  this  Department  that  those  two  states  were  averse 
to  receiving  any  such  settlements;  and  for  that  reason  the  instructions 
of  the  Secretary  of  the  Interior  to  Mr.  Pomeroy  were  modified.  He  was 
informed  that  the  President  accepted  Mr.  Yrisarri's  communication  as 
a  definitive  declination  of  the  two  Governments  which  he  represented 
to  receive  and  protect  a  colony  of  the  class  proposed  in  their  respective 
countries.  Whereupon  Mr.  Pomeroy  was  expressly  directed  not  to  pro- 
ceed with  such  colony  to  any  part  of  the  territories  of  either  of  the  said 
Republics  of  Guatemala  and  Salvador. 

"In  your  note,  which  is  now  under  consideration,  you  protest,  in  be- 
half of  the  Republics  of  Costa  Rica,  Nicaragua,  and  Honduras,  against 
the  introduction  of  any  colony  of  the  kind  proposed  within  the  territory 
of  either  of  those  Republics.  You  also  inform  this  Department  that  a 
38 


CHAP.  I.]  forp:ign  recruiting  forbidden.  [§  12. 

portion  of  tlie  region  called  Chiriqui,  which  is  claimed  by  Mr.  Ambrose 
W.  Thompson,  and  which  he  offers  as  a  site  for  such  a  colony,  lies  un- 
questionably within  the  territory  of  Costa  Rica,  while  another  portion 
lies  within  the  unquestioned  territory  of  New  Granada,  and  still  a  third 
part  is  in  dispute  between  the  Government  of  Costa  Eica  and  New 
Granada;  and  you  extend  your  protest  so  as  to  make  it  cover  not  only 
the  unquestioned  territory  of  Costa  Eica,  but  also  that  portion  of  Chiri- 
qui which  is  claimed  by  Costa  Eica. 

"  I  have  now  to  inform  your  excellency  that  the  acts  of  Congress,  under 
which  the  colonization  in  question  is  proposed  to  be  made,  do  not  war- 
rant the  attempt  to  establish  such  a  colony  in  any  country  without  the 
previous  consent  of  the  Government  thereof,  and  that  your  protest  is 
accepted  by  the  President  as  a  denial  of  such  consent  on  the  part  of 
the  three  states  you  so  worthily  represent." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Molina,  Sept.  24,  1862 ;  MSS.  Notes,  Cent.  Am. 
Dip.  Corr.  1862. 

The  United  States  Government  cannot  purchase  a  grant  of  land  in, 
or  concession  of  right  of  way  over,  the  territories  of  another  nation,  as 
could  an  individual  or  private  corporation,  since,  by  the  law  of  nations, 
one  Government  cannot  enter  upon  the  territories  of  another,  or  claim 
any  right  whatever  therein. 
9  Op.,  286,  Black  (1859). 

(2)  Recruiting  in  Foreign  State  Forbidden. 
§12. 

"One  other  subject  of  discussion  between  the  United  States  and 
Great  Britain  has  grown  out  of  the  attempt  which  the  exigencies  of 
the  war  in  which  she  is  engaged  with  Eussia  induced  her  to  make,  to 
draw  recruits  from  the  United  States. 

"It  is  the  traditional  and  settled  policy  of  the  United  States  to  main- 
tain impartial  neutrality  during  the  wars  which  from  time  to  time  occur 
among  the  great  powers  of  the  world.  Performing  all  the  duties  of 
neutrality  towards  the  respective  belligerent  states,  we  may  reasonably 
expect  them  not  to  interfere  with  our  lawful  enjoyment  of  its  benefits. 
Notwithstanding  the  existence  of  such  hostilities,  our  citizens  retain 
the  individual  right  to  continue  all  their  accustomed  pursuits,  by  land 
or  by  sea,  at  home  or  abroad,  subject  only  to  such  restrictions  in  this 
relation  as  the  laws  of  war,  the  usage  of  nations,  or  special  treaties, 
may  impose;  and  it  is  our  sovereign  right  that  our  territory  and  juris- 
diction shall  not  be  invaded  by  either  of  the  belligerent  i)arties  for  the 
transit  of  their  armies,  the  operations  of  their  fleets,  the  levy  of  troops 
for  their  service,  the  fitting  out  of  cruisers  by  or  against  either,  or  any 
other  act  or  incident  of  war.  And  these  undeniable  rights  of  neutrality, 
individual  and  national,  the  United  States  will  under  no  circumstances 
surrender." 

President  Pierce's  Third  Annual  McBsage,  1855. 

39 


§  12.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

"In  authorizing  a  plan  of  recruitment,  which  was  to  be  carried  out 
in  part  within  our  territory,  the  British  Government  seems  to  have  for- 
gotten that  the  United  States  had  sovereign  rights  as  well  as  municipal 
laws  which  were  entitled  to  its  respect.  For  very  obvious  reasons  the 
officers  employed  by  Her  Majesty's  Government  in  raising  recruits  from 
the  United  States  would,  of  course,  be  •cautioned  to  avoid  exposing 
themselves  to  the  penalties  prescribed  by  our  laws,  but  the  United 
States  had  a  right  to  expect  something  more  than  precautions  to  avoid 
those  penalties.  They  had  a  right  to  expect  that  the  Government  and 
officers  of  Great  Britain  would  regard  the  policy  indicated  by  these 
laws,  and  respect  our  sovereign  rights  as  an  independent  and  friendly 
power." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Crampton,  September  5,  1855.     MSS.  Notes, 
Great  Britain. 

"  This  Government  does  not  contest  Lord  Clarendon's  two  proposi- 
tions in  respect  to  the  sovereign  rights  of  the  United  States — first,  that 
in  the  absence  of  municipal  law  Great  Britain  may  enlist,  hire,  or  engage 
as  soldiers  within  the  British  territory  persons  who  have  left  the  United 
States  for  that  purpose ;  (this  proposition  is,  however,  to  be  understood 
as  not  applying  to  persons  who  have  been  enticed  away  from  this 
country  by  tempting  offers  of  reward,  such  as  commissions  in  the 
British  army,  high  wages,  liberal  bounties,  pensions,  and  portions  of 
the  royal  domain,  urged  on  them  while  within  the  United  States  by 
the  officers  and  agents  of  Her  Majesty's  Government);  and,  secondly, 
no  foreign  power  has  a  right  to  enlist  and  organize  and  train  men  as 
British  soldiers  within  the  United  States.  The  right  to  do  this  Lord 
Clarendon  does  not  claim  for  his  Government;  and  whether  the  British 
officers  have  done  so  or  not  is,  as  he  appears  to  understand  the  case, 
the  only  question  at  issue,  so  far  as  international  rights  are  involved, 
between  the  two  countries. 

"  In  his  view  of  the  question  as  to  the  rights  of  territory,  irrespective 
of  municipal  law.  Lord  Clarendon  is  understood  to  maintain  that  Her 
Majesty's  Government  may  do  anything  within  the  United  States  short 
of  enlisting  and  organizing  and  training  men  as  soldiers  for  the  British 
army  with  perfect  respect  to  the  sovereign  rights  of  this  country. 

"  This  proposition  is  exactly  the  reverse  of  that  maintained  by  this 
Government,  which  holds  that  no  foreign  power  whatever  has  the  right 
to  do  either  of  the  specified  acts  without  its  consent.  No  foreign  power 
can,  by  its  agents  or  officers,  lawfully  enter  the  territory  of  another  to 
enlist  soldiers  for  its  service  or  organize  or  train  them  therein,  or  even 
entice  persons  away  in  order  to  be  enlisted  without  express  permis- 
sion." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchanan,  December  28,  1855.     MSS.  Inst., 
Great  Britain;  aee  infra,  $§  392,  395. 

40 


CHAP.  I.J  RECRUITING  :    PASSAGE    OF    TROOPS.  [§  13. 

It  is  not  lawful  to  enlist  soldiers  in  foreign  territory  without  the  con- 
sent of  its  Government. 

7  Op.,  367,  Gushing,  1855. 

The  correspondence  of  the  United  States  with  Great  Britain  in  1856  relative  to 
recruiting  in  the  United  States  will  be  found  in  British  and  Foreign  State 
Papers  for  1857-8,  vol.  48,  190  ff,  comprising  Mr.  Crampton's  disjjatches  of 
March  3,  1856,  and  of  June  10,  1856,  in  his  own  defense.  Lord  Clarendon's 
explanation  of  April  30,  1856,  and  Mr.  Marcy's  instructions  to  Mr.  Dallas 
of  May  27,  1856. 

Other  portions  of  the  correspondence  are  given  in  British  and  Foreign  State 
Papers  for  1860-1,  vol.  51 ;  and  in  Senate  Ex.  Doc.  No.  35,  34th  Cong.,  Ist 
sess. 

That  a  neutral  is  bound  to  prevent  such  enlisting,  see  infra,  $  395. 

The  correspondence  relative  to  the  dismissal  of  Mr.  Crampton,  British  minister 
in  the  United  States,  for  encouraging  British  recruiting  in  the  United 
States,  is  given  infra,  $  84. 

It  is  not,  however,  a  breach  of  neutrality  to  permit  subjects  on  their 
own  motion  to  go  to  a  foreign  land  to  enlist  in  the  service  of  a  bellig- 
erent.    [Infra,  §  392.] 

(3)  Permission  Requisite  for  thf  Passage  op  Foreign  Troops. 

§13. 

In  September,  1790,  General  Washington  having  put  the  question  to 
Mr.  Adams,  Mr.  Jefferson,  and  Mr.  Hamilton,  "What  should  be  the 
answer  of  the  Executive  of  the  United  States  to  Lord  Dorchester  in 
case  he  should  apply  for  permission  to  march  troops  through  the  terri- 
tory of  said  States,  from  Detroit  to  the  Mississippi,"  Mr.  Adams  ad- 
vised a  refusal  of  such  a  request  (8  J.  Adams's  Works,  497).  Mr.  Jef- 
ferson was  of  the  same  opinion.  Mr.  Hamilton  argued  earnestly  and 
at  length  for  the  granting  of  the  request,  even  though  the  object  of 
the  movement  of  troops  should  be  the  attack  on  New  Orleans  and  the 
Spanish  possessions  on  the  Mississippi.    [4  Hamilt.  Works  (ed.  1885),  20.] 

Mr.  Jefferson's  opinion  against  the  policy  of  permitting  British  troops  to  be 
transported  over  the  territory  of  the  United  States,  from  Detroit  to  the 
Mississippi,  is  given  7  Jeff.  Works,  508. 

The  right  of  the  United  States  to  send  troops  across  the  Isthmus 
of  Panama  is  guaranteed  by  the  treaty  with  New  Granada  of  1846. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Paredes,  June  20,  1853 ;  MSS.  Notes  Colomb.  ; 
same  to  same,  Oct.  12,  1853. 

No  belligerent  army  has  the  right  of  passage  through,  or  entry  into, 
neutral  territory  without  the  consent  of  its  sovereign. 

7  Op.,  122,  Gushing,  1855.     Bee  infra,  $397. 

"In  January,  1862,  the  Secretary  of  State  of  the  United  States 
transmitted  an  order  to  the  marshal,  and  all  other  Federal  officers  in 
Portland,  directing  that  the  agents  of  the  British  Government  should 
have  all  proper  facilities  for  landing  and  conveying  to  Canada,  or  else- 

41 


§  13.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

where,  troops  and  muiiitions  of  war  of  every  kind,  without  exception. 
The  occasion  of  the  order  was  the  expected  arrival  of  a  steamer  from 
England,  bound  to  Quebec  and  Montreal  with  troops. 

******* 

"'No  foreign  nation  inimical  to  Great  Britain  is  likely  to  complain  of 
the  United  States  for  extending  such  a  comity  to  that  power.  If, 
therefore,  there  be  any  danger  to  be  apprehended  from  it,  it  must  come 
in  the  form  of  direct  hostility  on  the  part  of  the  British  Government 
against  the  United  States.  The  United  States  have  not  only  studi- 
ously practiced  the  most  perfect  justice  in  their  intercourse  with 
Great  Britain,  but  they  have  also  cultivated  on  their  part  a  spirit  of 
friendship  towards  her  as  a  kindred  nation,  bound  by  the  peculiar  ties 
of  commerce.  The  Grand  Trunk  Eailroad,  a  British  highway  extended 
through  the  territories  of  the  United  States  to,  perhaps,  the  finest  sea- 
port of  our  country,  is  a  monument  of  their  friendly  disposition.  The 
reciprocity  treaty,  favoring  the  productions  of  British  North  America 
in  the  markets  of  the  United  States  is  a  similar  monument  of  the  same 
wise  and  benevolent  policy.'  Mr.  Seward  to  the  governor  of  Maine, 
January  17,  1862." 

Lawrence's  Wheaton,  ed.  18G3,  p.  195 ;  see  also  3  Lawrence,  com.  sur.  droit, 
int.,  434. 

In  1875  permission  was  granted  to  the  governor  of  Canada  by  the 
Government  of  the  United  States  to  transport  "  through  its  territory 
certain  supplies,  designed  for  the  use  of  three  divisions  of  Canadian 
mounted  police  force." 

Mr,  Fish,  Sec.  of  State,  to  Sir  E.  Thornton,  May  5,  1875.    MSS.  Notes,  Great  Brit. 

In  October,  1876,  the  President  gave  permission  to  Mexico  "for  the 
landing  at  Brazos  Santiago,  in  Texas,  of  a  small  body  of  the  troops  of 
that  Eepublic,  supposed  to  be  intended  to  aid  in  the  defense  of  Mata- 
moras,"  with  the  proviso  that  the  stay  be  not  unnecessarily  long,  and 
that  the  Mexican  Government  be  held  liable  for  any  injury  inflicted  by 
the  troops  during  their  stay. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cameron,  Oct.  20, 1876.     MSS.  Dom.  Let. 

"  On  rare  occasions  the  consent  of  a  foreign  government  is  asked, 
through  diplomatic  channels,  for  the  passage  of  small  bodies  of  troops, 
or  for  permission  to  do  other  acts  which  might  otherwise  be  violation 
of  territory ;  but  in  such  cases,  as  the  offense  would  be  against  the 
sovereignty  of  the  government  only,  permission  at  times  is  accorded. 
It  is  seriously  doubted,  however,  whether  it  is  in  the  province  of  an 
officer  of  the  army,  in  command  on  a  distant  station,  to  permit  or 
sanction  such  violation.  It  is  also  extremely  doubtful  whether  it  is 
in  any  aspect  competent  to  assume  to  permit  a  foreign  power  to  trans- 
port persons  in  custody  through  the  territory  of  the  United  States, 
maintaining  over  them  while  in  transitu  any  authority  or  power.  In 
such  a  case  the  rights  of  the  individual  are  also  involved." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cameron,  December  7,  1876.     MSS.  Dom.  Let. 
42 


CHAP.  I.]  FOREIGN    INTRUSION    FORBIDDEN.  [§  14. 

Permission  was  given  in  February,  1881,  by  the  governor- general 
of  Canada  for  the  passage  of  the  "  Spaulding  Guards,"  of  Buftalo, 
armed  and  equipped,  over  the  Canada  Southern  Eailway  from  Buffalo 
to  Detroit. 

Mr.  Hay,  Asst.  Sec.  of  State,  to  Mr.  Sherman,  February  24,  1881.     MSS,  Doni. 
Let. 

A  permission  to  a  foreign  government  to  transport  its  troops  over 
the  territory  of  the  United  States  will  be  granted  only  in  case  of 
peaceful  transfer  devoid  of  any  military  object  affecting  the  peace  of 
any  third  state. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Morgan,  April  5,  1885.     MSS.  Instruc.  Mex. 
As  to  arrangement  between  the  United  States  and  Mexico  as  to  the  right  of 
troops  to  cross  the  border  in  pursuit  of  hostile  Indians,  see  Mr.  Freling- 
huysen,  Sec.  of  State,  to  Mr.  Morgan,  June  6,  1882.     MSS.  Instruc,  Mex. 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  October  6,  1885,  ib.     (See  also 
infra,  $§13,r0e.) 
As  to  proposition  to  Mexico  to  allow  the  regular  troops  of  both  countries  to 
cross  the  border  in  pursuit  of  marauders,  see  Mr.  Fish,  Sec.  of  State,  to 
Mr.  Foster,  May  4,  1875.     MSS.  Instruc,  Mex.     Infra,  ^  18,50«. 
That  a  neutral  giving  pririleges  of  this  kind  to  one  belligerent  becomes  liable 
to  the  other  belligerent,  see  infra,  $  397. 

When  the  passage  of  troops  is  allowed,  this  bestows  extraterrito- 
riality on  the  troops  so  passing. 

Schooner  Exchange  v.  McFaddon;  7  Cranch,  116. 

As  will  hereafter  be  seen,  when  belligerent  troops  fly  to  neutral  ter- 
ritory to  escape  a  pursuing  belligerent,  they  must  lay  down  their  arms. 
They  are  then,  when  in  neutral  territory,  protected  by  the  law  of  na- 
tions from  their  pursuers.  , 

Infra,  $  398. 

(4)  Seizure  of  Person  or  Property  by  Foreign  Prlncb  Forbidden. 

§14. 

A  seizure  for  the  breach  of  the  municipal  laws  of  one  nation  cannot 
be  made  within  the  territory  of  another. 

The  Apollon,  9  Wheaton,  362. 

It  is  an  offense  against  the  law  of  nations  for  any  persons,  whether 
citizens  or  foreigners,  residing  in  the  United  States,  to  go  into  the  ter- 
ritory of  Spain  to  recover  their  property  by  force  or  in  any  maimer 
other  than  its  laws  permit. 

1  Op.,  68,  Lee,  1797. 

As  to  territorial  waters,  see  infra  $§  27, 32. 

So  long  as  Denmark  tolerates  slavery  in  her  dominions  it  is  an  inva- 
sion of  her  sovereignty  to  take  away  from  St.  Croix  by  seduction,  invi- 
tation, connivance,  ignorance,  or  mistake,  slaves  from  the  possession 

43 


§  15.]  SOVEREIGNTY    OVER    L,AND.  [CHAP.  I. 

of  Danish  owners,  and  if  avowed  and* unredressed  on  our  part  this  is  a 
just  cause  of  war. 

1  Op.,  566.  Wirt,  1822. 

The  attempted  arrest  of  Koszta,  in  Turkey,  by  Austria,  was  treated 
in  the  Department  of  State  as  a  violation  of  international  law. 

Mr,  Frelinghuysea,  Sec.  of  State,  to  Mr.  Randall,  Margh  14,  April  17,1884.     MSS 
Dom.  Let.     (See  tn/ra,  $M8,  198.) 

But  when  an  alleged  criminal  is  brought  within  the  jurisdiction  of 
the  United  States  by  irregular  extradition  process  or  by  kidnapping, 
this  is  a  defense  he  cannot  set  up  when  tried  for  the  oflense  for  which 
the  arrest  was  made.    The  wrong  is  for  executive  redress. 

Whart.  Cr.Pl.  and  Prac,  §  27. 

(5)  And  so  of  Foreign  Jurisdiction  of  Crimes. 

§  15. 

It  is  incompatible  with  the  limits  of  the  present  work  to  give  in 
detail  the  rulings  of  our  courts  in  reference  to  jurisdiction  of  crimes. 
In  another  work  they  are  given  under  the  following  heads  : 

Federal  judiciary  has  no  common  law  jurisdiction  (Whart.   Cr. 

Law,  §  253). ' 
Federal  courts  have  statutory  jurisdiction  over — 
Offenses  against  law  of  nations  {id.,  §  258). 
Offenses  against  federal  sovereignty  {id.,  §  259.) 
Offenses  against  individuals  on  federal  soil  or  ships  {id.,  §  260). 
Offenses  against  federal  justice  {id.,  §  262). 
Conflict  and  concurrence  of  jurisdictions. 
Offenses  at  sea  cognizable  in  country  of  flag  {id.,  269). 
Federal  courts  have  jurisdiction  of  crimes  on  high  seas  out  of 

State  jurisdiction  {id.,  270). 
Sovereign  has  jurisdiction  of  sea  within  cannon-shot  from  shore 
{id.,  271). 
Offenses  by  subjects  abroad. 
Subjects  may  be  responsible  to  their  own  sovereign  for  offenses 

abroad  {id.,  271). 
Apportionment  of  this  sovereignty  between  Federal  and  State 

governments  {id.,  273). 
Also  over  political  offenses  abroad  {id.^  274). 
Political   extraterritorial  offenses    by  subjects  are    punishable 

{id.,  275). 
Perjury  and  forgery  before  consular  agents  punishable  at  home 

{id.,  276). 
Homicide  by  subjects  abroad  punishable  in   England  {id.,  277). 
Liability  of  extraterritorial  principal. 

Extraterritorial   principal   mav  be    intraterritorially  indictable 

{id.,  278). 
Agent's  act  in  such  case  imputable  to  principal  {id.,  279). 
Doubts  in  cases  where  agent  is  independently  liable  {id.,  280). 
Offenses  by  aliens  in  country  of  arrest. 
Aliens  indictable  in  country  of  arrest  by  Roman  law  {id.,  281). 

44 


CHAP.  I.]  CRIMES    COMMITTED    ABROAD.  [§  15. 

So  in  English  and  American  law  {id.^  282). 

So  as  to  Indians  {id.,  2S2a). 

But  not  so  as  to  belligerents  {id.,  283). 
Offenses  by  aliens  abroad. 

Extraterritorial  offenses  against  our  rights  may  be  intraterri- 
torially  indictable  {id.,  284). 

Jurisdiction  claimed  in  cases  of  perjury  and  forgery  before  con- 
suls {id.,  285). 

Punishment  in  such  cases  {id.,  286). 
Offenses  spreading  over  a  plurality  of  jurisdictions. 
Accessaries  and  co  conspirators  indictable  in  place  of  accessary- 
ship  or  conspiracy  and  of  performance  {id.,  287). 
In  continuous  offenses  each  place  of  overt  act  has  jurisdiction 
{id.,  288). 

Adjustment  of  punishment  in  such  cases  {id.,  289). 

In  larceny  thief  is  liable  wherever  goods  are  taken  {id.,  291). 

In  homicide  place  of  wound  has  jurisdiction,  and  by  statute 
place  of  death  {id.,  292). 

Law  of  place  of  performance  mav  determine  indictability  {id., 
292a). 

Sovereigns  may  have  concurrent  jurisdiction  {id.,  293). 

Offenses  against  law  of  nations  (id.,  §§  1860,  1889,  1900). 

"No  act  committed  in  one  country,  however  criminal,  according  to 
its  laws,  is  criminal  according  to  the  laws  of  the  other.  Crimes,  in  a 
legal  sense,  are  local,  and  are  so  only  because  the  acts  constituting 
them  are  declared  to  be  so  by  the  laws  of  the  country  where  they  are 
perpetrated.  Great  Britain  cannot  by  her  laws  make  an  act  committed 
within  the  jurisdiction  of  the  United  States  criminal  within  her  terri- 
tories, however  immoral  of  itself,  and  vice  versa.  The  proposition  is 
too  clear  to  require  illustration  or  to  be  contested;  but,  if  that  be  ad- 
mitted, it  must  also  be  admitted  that  the  criminality  referred  to  in  the 
proviso  is  to  be  judged  of  by  the  laws  of  the  place  within  whose  juris- 
diction the  act  was  charged  to  have  been  perpetrated,  and  not  where 
the  fugitive  is  found." 

Mr.  Calhoun,  Sec.  of  State,   to  Mr.    Everett,   August  7,  1844.     MSS.  Inst., 
Great  Britain. 

"We  hold  that  the  criminal  jurisdiction  of  a  nation  is  limited  to  its 
own  dominions  and  to  vessels  under  its  flag  on  the  high  seas,  and  that 
it  cannot  extend  it  to  acts  committed  within  the  dominion  of  another 
without  violating  its  sovereignty  and  independence.  Standing  on  this 
well-established  and  unquestioned  principle,  we  cannot  permit  Great 
Britain  or  any  other  nation,  be  its  object  or  motive  what  it  may,  to  in- 
fringe our  sovereignty  and  independence  by  extending  its  criminal 
jurisdiction  to  acts  committed  within  the  limits  of  the  United  States, 
be  they  perpetrated  by  whom  they  may.  All  therein  are  subject  to 
their  jurisdiction,  entitled  to  their  protection,  and  amenable  exclusively 
to  their  laws." 

Mr,  Calhoun,  Sec.  of  State,  to  Mr.  Everett,  September  25,  1844.     MSS.  Inst., 
Great  Britain. 

45 


§  15.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

"  By  the  law  of  nations  every  independent  state  possesses  the  exclu- 
sive right  of  police  over  all  persons  within  its  jurisdiction,  whether  upon 
its  soil  or  in  its  vessels  upon  the  ocean,  and  this  national  prerogative 
can  only  be  interfered  with  in  cases  where  acts  of  piracy  are  committed, 
which,  by  the  j^ublic  law  of  the  world,  are  cognizable  by  any  power 
seiziug  the  vessel,  thus  excluded  from  the  common  rights  of  the  ocean." 

Mr.   Cass,  Sec.  of  State,   to  Mr.   Dallas,  Feb.  23,  1859.     MSS.  Instruc,  Great 
Britain. 

"  Eeferring  to  the  correspondence  which  has  taken  place  concerning 
the  case  of  Peter  Martin,  held  in  custody  in  British  Columbia,  and  par- 
ticularly to  my  notes  of  the  2d  of  November  and  the  6th  of  December 
last,  I  have  now  the  honor  to  inform  you  that  a  dispatch  has  been 
received  from  the  consul  of  the  United  States  at  Victoria,  dated  De- 
cember 20,  stating  that  Martin  had  been  brought  to  trial  for  the  assault 
charged  against  him,  in  a  court  of  assize  held  at  Victoria,  on  the  16th 
December  ultimo,  before  the  Hon.  P.  P.  Crease,  a  justice  of  the  supreme 
court  of  the  province,  and  had  been  found  guilty  and  sentenced  to  one 
year  and  nine  months'  imprisonment  at  hard  labor,  to  take  effect  after 
the  expiration  of  the  term  of  imprisonment  of  fifteen  months  to  which 
he  was  sentenced  in  September  last. 

"  The  consul,  who  was  present  at  the  trial,  states  that  two  witnesses, 
who  were  on  the  spot  at  the  happening  of  the  occurrence,  testified  that 
the  assault  occurred  in  what  is  considered  to  be  Alaska  territory,  one  lo- 
cating the  point  near  the  Stickine  Eiver,  eight  or  ten  miles  from  its  mouth, 
the  other  at  a  distance  of  some  ten  or  twenty  miles  from  its  mouth,  and 
that  the  judge,  in  charging  the  jury,  referred  at  some  length  to  the  point 
of  jurisdiction  and  to  the  fact  that  a  question  had  been  raised  by  this 
Government  concerning  the  right  of  a  court  in  the  province  to  try  the 
prisoner  for  an  offense  committed  in  Alaska  and  to  correspondence 
between  the  two  Governments,  but  stated  to  the  jury  that  he  would 
entirely  disembarrass  them  on  that  point  by  saying  that  no  evidence 
had  been  produced  or  could  be  produced  to  show  that  the  offense  for 
which  the  prisoner  was  on  trial  was  really  committed  in  Alaska,  as  the 
boundary  between  the  two  countries  on  the  Stickine  Eiver  remained 
undetermined,  and  no  line  of  demarkation  existed  showing  how  far  up 
that  river  American  territory  actually  extends,  whether  it  was  five  miles, 
ten  miles,  or  thirty  miles ;  and  that,  under  these  circumstances,  the  court 
had  jurisdiction  or  concurrent  jurisdiction,  and  the  proceedings  in  try- 
ing the  prisoner  were  just  and  proper. 

"  In  the  note  originally  addressed  to  you,  under  date  of  November  2, 
it  was  suggested  that  if  it  appeared  that  the  assault  was  committed 
within  the  territory  of  the  United  States,  Martin  could  not  properly 
be  tried  for  the  offense  with  which  he  was  charged,  and  that  he  should 
be  set  at  liberty ;  and  I  had  tlie  honor  to  request  that  you  would  call 
the  attention  of  Her  Majesty's  proper  authorities  to  the  case,  that  an 
examination  of  the  facts  might  be  made  before  the  ease  was  disposed  of. 
46 


CHAP.  I.]  CRIMES    COMMITTED    ABROAD.  [§  15. 

"The  facts  were  laid  before  yon,  and  while  no  unnecessary  prominence 
was  gfven  to  the  violation  of  the  sovereignty  of  the  United  States 
which  had  taken  place,  it  was  confidently  hoped  that  before  Martin 
was  placed  on  trial  for  the  new  charge,  or  before  any  proceedings  had 
been  taken  to  continue  his  imijrisonment  on  the  former  one,  the  facts 
would  have  been  carefully  examined  by  the  colonial  authorities  and  a 
conclusion  reached  as  to  what  course  should  propeHy  be  taken,  in  view 
of  the  rights  of  Martin  and  of  the  sovereignty  of  the  United  States, 
which  it  was  stated  had  been  invaded,  and  it  is  a  matter  of  regret  that 
under  the  circumstances  the  court,  with  apparent  knowledge  of  the 
facts,  should  have  proceeded  with  the  trial  and  have  sentenced  the 
prisoner,  and  assumed  to  decide  questions  having  a  serious  bearing  on 
the  rights  and  jurisdiction  of  the  two  countries.  Moreover,  the  posi- 
tion assumed  by  the  learned  judge  who  presided  at  the  trial,  if  rightly 
reported,  seems  to  be  such  as  I  feel  quite  confident  will  not  be  sus- 
tained by  Her  Majesty's  Government. 

"The  absence  of  a  line  defined  and  marked  on  the  surface  of  the 
earth  as  that  of  the  limit  or  boundary  between  two  countries  cannot 
confer  upon  either  a  jurisdiction  beyond  the  point  where  such  line 
should  in  fact  be.  That  is  the  boundary  which  the  treaty  makes  the 
boundary.  Surveys  make  it  certain  and  patent,  but  do  not  alter  rights 
or  change  rightful  jurisdiction. 

"  It  may  be  inconvenient  or  difficult  in  a  particular  case  to  ascertain 
whether  the  spot  on  which  some  occurrence  happened  is  or  is  not  be- 
yond the  boundary  line;  but  this  is  simply  a  question  of  fact,  upon 
the  decision  of  which  the  right  to  entertain  jurisdiction  must  depend. 

"  I  have  the  honor,  therefore,  to  ask  again  your  attention  to  the  sub- 
ject and  to  remark  that  if,  as  appears  admittedly  to  be  the  fact,  the 
colonial  officers  in  transporting  Martin  from  the  place  at  which  he  was 
convicted  to  his  place  of  imprisonment,  via  the  Stickine  Eiver,  did 
conduct  him  within  and  through  what  is  the  unquestioned  territory  of 
the  United  States,  a  violation  of  the  sovereignty  of  the  United  States 
has  been  committed,  and  the  recapture  and  removal  of  the  prisoner 
from  the  jurisdiction  of  the  United  States  to  British  soil  was  an  illegal, 
violent,  and  forcible  act,  which  cannot  justify  the  subsequent  proceed- 
ings whereby  he  has  been,  is,  or  may  be,  restrained  of  his  liberty. 

"  I  have,  therefore,  to  express  the  hope  that  if  Her  JMajesty's  authori- 
ties find  the  fact  to  be  as  it  is  represented,  that  Martin  was  conducted 
by  the  officers  having  him  in  custody  into  and  through  the  Territory 
of  Alaska,  being  part  of  and  within  the  jurisdiction  and  sovereignty  of 
the  United  States,  he  be  set  at  liberty. 

"I  must  not  allow  this  question  to  pass  without  entering  an  explicit 
dissent  from  the  doctrine  which  seems  to  be  advanced  by  the  learned 
judge  who  presided  at  the  trial  of  Martin,  that  jurisdiction  or  concur- 
rent jurisdiction  vests  in  Her  Majesty's  colonial  authorities  or  courts 
over  offenses  committed.within  any  part  of  the  Territory  of  Alaska,  even 

47 


§  15.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

though  so  near  to  the  treaty-line  that  uncertainty  or  doubt  may  exist 
on  which  side  of  such  line  the  offense  is  committed.  It  cannot^I  think, 
be  necessary  to  argue  this  point,  or  to  do  more  than  record  this  dissent 
and  denial  of  a  doctrine  which,  I  have  no  doubt,  Her  Majesty's  Govern- 
ment agrees  with  me  in  repudiating." 

Mr.  Fish,  Sec.  of  State,  to  Sir  Edward  Thornton,  January  10, 1877;  MSS.  Notes, 
Great  Brit.;  For.  Rel.,  1877.  (See, for  same  correspondence,  Brit,  and  For. 
State  Papers,  1876-7,  vol.  68.) 

*'  On  July  22, 1886,  the  telegram  of  Mr.  Jackson,  minister  at  Mexico, 
dated  July  21,  1886,  was  received  here,  stating  the  refusal  of  the  Mex- 
ican Government  to  accede  to  the  telegraphic  demand  of  the  under- 
signed for  Cutting's  release,  the  substance  of  which  telegram  is  ap- 
pended. On  the  same  day  a  summary  of  the  reasons  for  so  declining 
was  asked  for  by  telegraph,  and  on  the  same  night  a  reply  from  Mr. 
Jackson  was  received,  giving  a  summary  of  the  Mexican  reasons.  The 
substance  of  this  telegraphic  summary  is  annexed,  and  the  full  text  of 
Mr.  Mariscal's  refusal  is  found  among  the  accompaniments  to  a  later 
dispatch  from  Mr.  Jackson— No.  272,  of  July  22, 1886. 

"On  July  26,  1886,  Consul  Brigham  telegraphed  to  this  Department 
that  the  governor  of  Chihuahua  was  pushing  the  trial  of  Cutting,  who 
ignored  the  proceedings ;  copy  of  which  telegram  is  appended. 

"On  July  27, 1886,  the  instruction  of  the  undersigned,  numbered  228, 
was  mailed  to  Mr.  Jackson ;  copy  thereof  is  annexed. 

"The  last  communication  from  Minister  Jackson  on  the  subject,  being 
his  dispatch  No.  272,  of  July  22,  1886,  hereinbefore  referred  to,  was  re- 
ceived at  this  Department  on  the  31st  ultimo.  It  conveys  the  text  of 
the  correspondence  had  by  him  with  the  Mexican  secretary  for  foreign 
affairs,  in  which  Cutting's  release  was  demanded  and  refused. 

"In  the  interim  since  July  27,  1886,  the  undersigned  has  had  several 
personal  interviews  with  Mr.  Matias  Komero,  the  Mexican  minister  at  this 
capital,  whose  desire  for  a  satisfactory  adjustment  of  this  case  has  been 
manifested,  but  from  whom  the  undersigned  has  procured  no  other  in- 
formation than  is  contained  in  the  correspondence  herein  recited. 

"A  copy  of  article  186  of  the  Mexican  code,  which  was  handed  to  the 
undersigned  by  Mr.  Romero  in  support  of  the  claim  of  Mexico  to  take 
cognizance  of  crimes  of  which  Mexicans  were  the  subject  in  foreign  coun- 
tries, is  herewith  appended. 

"This  conflict  of  laws  is  even' more  profound  than  the  literal  differ- 
ence of  corresponding  statutes,  for  it  affects  the  underlying  principles 
of  security  to  personal  liberty  and  freedom  of  speech  or  expression  which 
are  among  the  main  objects  sought  to  be  secured  by  our  frame- work  of 
Government. 

"The  present  case  may  constitute  a  precedent  fraught  with  the  most 
serious  results. 

"The  alleged  offense  may  be— and  undoubtedly  in  the  present  case 
48 


CHAP.  I.]  CRIMES    COMMITTED    ABROAD.  [§  15. 

is — within  the  United  States  held  to  be  a  misdemeanor,  not  of  high 
grade ;  but  in  Mexico  may  be  associated  with  penal  results  of  the  grav- 
est character.  An  act  may  be  created  by  a  Mexican  statute  an  offense 
of  high  grade,  which  in  the  United  States  would  not  be  punishable  in 
any  degree.  The  safety  of  our  citizens  and  all  others  lawfully  within 
our  jurisdiction  would  be  greatly  impaired,  if  not  wholly  destroyed, 
by  admitting  the  j)ower  of  a  foreign  state  to  define  offenses  and  apply 
penalties  to  acts  committed  within  the  jurisdiction  of  the  United 
States. 

"  The  United  States  and  the  States  composing  this  Union  contain  the 
only  forum  for  the  trial  of  offenses  against  their  laws,  and  to  concede 
the  jurisdiction  of  Mexico  over  Cutting's  case,  as  it  is  stated  in  Consul 
Brigham's  report,  would  be  to  substitute  the  jurisdiction  and  laws  of 
Mexico  for  those  of  the  United  States  over  offenses  committed  solely 
within  the  United  States  by  a  citizen  of  the  United  States. 

"  The  offense  alleged  is  the  publication  in  Texas,  by  a  citizen  of  the 
United  States,  of  an  article  deemed  libelous  and  criminal  in  Mexico. 
No  allegation  of  its  circulation  in  Mexico  by  Mr.  Cutting  is  made,  and 
indeed  no  such  circulation  was  practicable  or  even  possible,  because 
the  arrest  was  summarily  made  on  the  same  day  of  the  publication  in 
the  English  language  in  Texas,  on  the  coming  of  the  alleged  writer  or 
publisher  into  Mexico.  And  the  Mexican  correspondence  accompany- 
ing Mr.  Mariscal's  refusal  to  release  Cutting,  found  in  the  accompani- 
ments to  Minister  Jackson's  dispatch,  Ko.  272,  of  July  22,  1886,  shows 
that  the  186th  article  of  the  Mexican  code  is  the  ground  of  the  jurisdic- 
tional claim. 

"Under  this  pretension,  it  is  obvious  that  any  editor  or  publisher  of 
any  newspaper  article  within  the  limits  and  jurisdiction  of  the  United 
States  could  be  arrested  and  punished  in  Mexico  if  the  same  were 
deemed  objectionable  to  the  officials  of  that  country,  after  the  Mexican 
methods  of  administering  justice,  should  he  be  found  within  those  bor- 
ders. 

"Aside  from  the  claim  of  extraterritorial  power,  thus  put  forth  for  the 
laws  of  Mexico  and  extending  their  jurisdiction  over  alleged  offenses 
admittedly  charged  to  have  been  committed  within  the  borders  of  the 
United  States,  are  to  be  considered  the  arbitrary  and  oppressive  pro- 
ceedings which,  as  measured  by  the  constitutional  standard  of  the 
United  States,  destroy  the  substance  of  judicial  trial  and  procedure,  to 
which  Mr.  Cutting  has  been  subjected." 

Mr.  Bayard,  Sec.  of  State,  Report  to  the  President  in  Cutting's  case,  Ang.  2, 
1886.  MSS.  Report  book:  Sen,  Ex.  Doc.  No.  224,  49  Cong.,  1  Sess.  See 
further  as  to  Cutting's  case,  ivfra,  $  189. 

The  courts  of  the  United  States  do  not  execute  the  penal  laws  of 
another  country. 

2  Op.,  365,  Berrieu,  1830;  see  Whart.  Ccnf.  of  Laws,  $  4. 

S,  Mis.  1G2— VOL.  I 4  *^ 


§§16,   17,   17a.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

(6)  Foreign  Sending  over  of  Paupers  anv  Criminals  Forbidden. 

§16. 

The  transport  of  paupers  from  Cuba  to  the  United  States  is  in  viola- 
tion of  United  States  laws  and  of  international  comity. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bernabd,  May  16,  1872 ;  MSS.  Notes,  Spain, 

As  to  deportation  of  criminals,  paupers,  and  insane  persons  from  Europe,  by  the 

local  authorities  there,  see  President's  message,  February  28, 1881.     (S.  Ex. 

Doc.  62,  Forty-sixth  Congress,  third  session,  162.) 

The  act  of  Congress  of  1862,  authorising  the  colonization  of  certain 
classes  of  persons  of  African  derivation  in  tropical  countries  was  condi- 
tioned on  the  assent  of  the  country  in  which  such  colonisation  was  pro- 
posed. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Molina,  Sept.  24,  1862 ;  MSS.  Notes,  Cent. 

Am. ;  Dip.  Cor.  1862 ;  aujyra  §  11a. 
As  to  the  right  of  non-reception  or  expulsion  of  such  persons,  see  infra,  $  206. 

XIV.  EXCEPTION  AS  TO  NECESSITY. 

§17. 

As  will  be  seen  more  fully  hereafter,  intrusion  on  the  territory  or 
territorial  waters  of  a  foreign  state  is  excusable  when  necessary  for 
self-protection  in  matters  of  vital  importance,  and  when  no  other  mode 
of  relief  is  attainable. 

Infra,  $$  38,  50. 

XV.  EXCEPTION  AS   TO  FOREIGN  SOVEREIGNS,    FOREIGN  MINISTERS, 
AND  FOREIGN  TROOPS. 

§  17fl. 

"The  perfect  equality  and  absolute  independence  of  sovereigns,  and 
this  common  interest  impelling  them  to  mutual  intercourse  and  an 
interchange  of  good  offices  with  each  other,  have  given  rise  to  a  class 
of  cases  in  which  every  sovereign  is  understood  to  waive  the  exercise 
of  a  part  of  that  complete,  exclusive  territorial  jurisdiction  which  has 
been  stated  to  be  tlie  attribute  ot  every  nation. 

"  First.  One  of  these  is  admitted  to  be  the  exemption  of  the  person  of 
the  sovereign  from  arrest  or  detention  within  a  foreign  territory.  *  *  * 

"  Second.  A  second  case,  st^diug  in  the  same  principles  with  the 
first,  is  the  immunity  which  all  civilized  nations  allow  to  foreign  min- 
isters.    *     ♦     * 

"  Third.  A  third  case,  in  which  a  sovereign  is  understood  to  cede  a 
portion  of  his  territorial  jurisdiction,  is  where  he  allows  the  troops  of  a 
foreign  prince  to  pass  through  his  dominions." 

Marshall,  C.  J.,  Schooner  Exchange  v.  McFaddon,  7  Cranch,  136. 
As  to  passage  of  troops,  see  supra,  9  13. 
As  to  immunities  of  foreign  ministers,  see  infra,  $  92  ff. 
As  to  immunities  of  national  ships,  see  infra,  §  36. 
50 


CHAP.  I.]  BORDER    INDIANS.  [§  176,  18. 

XVI.  EXCEPTrON  AS  TO  UNCIVILIZED  LANDS. 
§  176. 

lu  certain  uncivilized  or  semi-civilized  lands  there  is  by  force  of  treaty 
the  right  granted  to  the  United  States  to  establish  a  local  consular 
judiciary  to  adjudicate  questions  in  which  citizens  of  the  United  States 
are  concerned.  {Infra,  §  125.)  The  right,  also,  has  been  assumed  to 
arrest  in  such  lands  fugitives  from  justice,  or  offenders  against  the 
Government  of  the  United  States. 

See  Mr.  Seward,  Sec.  of  State,  to  Mr.  McMath,  April  28,  1862 ;  MSS.  Inst.  Bar- 
bary  States ;  Dip.  Corr. ,  1862.    (See  infra,  $  268;  Whart.  Conf.  of  Laws,  $  15. ) 

XVII.  DUTY  OF  SOVEBEia^  TO   RESTRAIN  AGENCIES  LIKELY   TO    IN- 
JURE ANOTHER  COUNTRY. 

(1)  Predatory  Indians. 

§  18. 

The  right  to  pursue  Indians  across  the  border  is  discussed  infra,  $  50. 
"  It  is  apprehended  that  the  Mexican  Government  is  not  well  aware 
that  although  for  a  heavy  pecuniary  consideration  it  has  released  the 
United  States  from  the  obligations  in  respect  to  predatory  incursions 
of  Indiaus  from  this  country  into  Mexico,  the  obligations  of  that  Gov- 
ernment in  respect  to  similar  marauders  from  that  country  into  the 
United  States  are  entire,  as  provided  for  both  by  public  law  and  by 
treaty.  The  duty  of  that  Government,  therefore,  at  least  to  aid  in 
restraining  its  savages  from  depredations  upon  us,  seems  to  be  clear. 
If  this  duty  shall  continue  to  be  neglected  we  may  be  compelled  in  self- 
defense  to  disregard  the  boundary  in  seeking  for  and  punishing  those 
bandits." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  May  28,  1877.  MSS.  Inst.,  Mexico. 
(See  Mr.  Fish,  Sec.  of  State,  to  Mr.  Nelson,  June  26,  1871 ;  MSS.  Inst.,  Mex., 
For.  Rel.,  1871.) 

"Referring  to  the  correspondence  which  has  been  exchanged  between 
us  in  relation  to  the  movements  of  the  lately  hostile  Indians  under  the 
lead  of  Sitting  Bull,  I  have  now  the  honor  to  bring  to  your  attention 
the  substance  of  recent  information  received  through  the  responsible 
agents  of  the  Department  of  the  Interior,  and  to  invite  earnest'  con- 
sideration of  the  important  points  thereby  suggested. 

"  This  Government  has  been  informed  that  companies  of  hostile  In- 
dians from  Sitting  Bull's  camp  have  been  and  are  scattered  about,  in 
groups  of  lodges  of  varying  numbers,  throughout  the  entire  northern 
part  of  the  Indian  reservation  having  Fort  Peck,  on  the  Poplar  River, 
in  Montana  Territory,  for  its  headquarters  and  agency.  The  peaceable 
resident  Indians  of  the  reservation  have  daily  come  into  the  agency 

51 


§  18.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

with  bitter  complaints  of  the  encroachments  of  Sitting  Bull's  men  on 
their  special  hunting  grounds.  They  say  that  they  find  Uncapapas 
from  Sitting  Bull's  camp  everywhere,  driving  and  scattering  the  buifalo 
and  other  game,  and  stealing  their  horses  and  running  them  over  the 
boundary  line,  thus  in  every  way  diminishing  the  ability  and  opportu- 
nity of  the  agency  Indians  to  maintain  themselves.  There  is  every 
reason  to  believe  that  Sitting  Bull  himself  was,  so  late  as  the  19th  ul- 
timo, within  the  territory  of  the  United  States,  and  had  been  camped 
south  of  the  boundary  line  since  February  last,  and  that  practically  all 
his  Indians  had  crossed  to  the  southward  of  our  northern  boundary, 
there  being,  as  they  claimed,  no  game  for  their  subsistence  on  the  Can- 
adian side.  This  state  of  things  naturally  gives  rise  to  disquietude, 
notwithstanding  the  later  information  communicated  to  me  by  you  in  a 
recent  conference,  that  Sitting  Bull  and  his  chief  lodges  of  warriors 
were  at  last  advices  again  on  British  territory. 

"It  is  true  that  these  wandering  movements  of  an  irreconcilable  and 
declaredly  unfriendly  Indian  force  from  one  side  to  the  other  of  the 
frontier,  do  not  indicate  any  determinate  purpose,  or  any  disposition 
even,  on  their  part  to  abandon  a  residence  under  British  protection,  or 
to  renew  the  state  of  warfare  with  the  Government  of  the  United 
States,  whose  active  hostilities  were  only  arrested  bj"  the  refuge  sought 
and  afforded  on  the  soil  of  a  neighboring  state.  Yet  the  situation  now 
existing  on  both  sides  of  the  border  cannot  but  be  regarded  as  one 
requiring  the  most  urgent  and  careful  attention  of  both  Governments, 
lest  by  uncertainty  as  to  the  precise  scope  and  definition  of  their  obli- 
gations towards  each  other,  and  indecision  in  their  treatment  of  the 
Indians  domiciled  within  their  jurisdiction,  undue  and  unnecessary 
difiSiculties  may  grow  out  of  the  present  attitude  of  these  tribes  which 
have,  in  the  most  formal  manner  possible  to  their  savage  state,  re- 
nounced their  rights  in  the  one  country  and  rejected  terms  of  security, 
subsistence,  and  peace,  to  seek  and  receive  asylum  and  residence  in 
the  other. 

"  Should  these  erratic  movements  continue,  this  Government  may  at 
any  moment  be  brought  face  to  face  with  the  necessity  of  suppressing 
the  marauding  operations  of  the  hostile  Indians  under  Sitting  Bull's 
lead,  or  even  of  resorting  to  active  military  operations  to  repel  open 
attacks  upon  the  lives  and  property  of  its  own  people. 

"  It  has,  as  it  conceives,  a  perfect  right  to  regard  as  a  menace  to 
domestic  peace  and  tranquillity  the  presence  within  its  borders  of  a 
warlike  body  of  disaffected  Indians,  who  have  explicitly  defied  its 
jurisdiction  and  by  their  own  act  embraced  the  protection  of  another 
power.  It  may  be  that,  in  the  interest  of  the  security  and  well  being 
of  both  friendly  Indians  and  white  natives  in  the  border- land,  this 
Government  may  feel  constrained  to  enforce  submission  upon  those 
who.  after  openly  denying  its  laws  and  power,  and  withdrawing  them- 

53 


CHAP.  1.]  BORDER    INDIANS.  [^  18. 

selves  therefrom,  may  return  within  its  jurisdiction,  with  or  without 
apparent  hostile  intent.  Should  this  Governmeut  decide  to  com])el  a 
submission  of  any  of  these  Indians  appearing  on  the  southern  side  of 
the  frontier  line,  it  would  look  upon  a  new  recourse  for  asylum  across 
the  line  as  calling  for  prompt  and  efficient  action  by  the  British  Gov- 
ernment to  repulse  them,  or  to  disarm,  disable,  and  sequestrate  them 
under  a  due  responsibility  for  them  as  a  component  part  of  the  terri- 
torial population  of  the  British- American  dominion. 

''  The  importance  of  a  distinct  understanding  on  this  point  is  ap- 
parent. It  is  impossible  to  give  countenance  to  any  line  of  argument 
or  assumption  by  which  these  savages  may  quit  and  resume  allegi- 
ance and  protection  at  will,  by  the  mere  circumstance  of  passing  to 
the  one  side  or  the  other  of  a  conventional  line  traced  through  the 
wilderness.  Before  the  era  of  hostilities  began  they  were  undoubt- 
edly subject  to  the  jurisdiction  of  the  United  States  as  much  as  the 
land  they  then  occupied,  and  even  though  their  migrations  in  peace- 
able search  of  food  might,  at  times,  carry  them  temporarily  aci'oss  the 
frontier,  they  were,  therefore,  none  the  less  a  part  of  the  population  of 
the  United  States,  and  alien  to  British  rule.  But  when  hostilities  be- 
gan, and  the  armed  force  of  the  United  States  was  summoned  to  en- 
force their  submission,  they  sought  and  received  asylum  and  protec- 
tion* across  the  border.  The  significance  of  their  acts  of  submission  to 
British  protection,  as  they  themselves  understood  and  intended  them, 
admits  of  no  doubt  as  to  the  extent  of  their  intention  to  assume  the 
character  of  inhabitants  of  British  domain,  and  their  belief  that  they 
had  done  so ;  and  no  act  of  Her  Majesty's  authorities  in  the  North 
American  possessions  of  Great  Britain  has  looked  toward  denial  of 
this  rudely  asserted  right  to  British  protection,  and  still  less  toward 
enforcement  upon  them  of  submission  to  the  authority  of  the  United 
States,  or  of  subjecting  them  to  the  treatment  usually  observed  to- 
ward revolted  aliens  on  the  territory  of  a  friendly  power. 

"  In  this  aspect  of  their  relations  to  the  British  Government,  this 
Government  conceives  that  it  is  bound  now  to  regard  the  Indians  of 
Sitting  Bull's  command  as  British  Indians.  Should  they  therefore 
make  incursions  of  a  hostile  character,  and  should  their  movements 
threaten  the  property,  the  domain,  or  the  means  of  subsistence  of  the 
friendly  Indian  tribes  of  the  United  States  dwelling  peaceably  on  their 
assigned  reservations,  or  should  active  military  operations  on  the  part 
of  the  United  States  against  them  become  for  any  cause  inevitable,  I 
beg  to  call  the  attention  of  Her  Majesty's  Government  to  the  gravity 
of  the  situation  which  may  thus  be  produced,  and  to  express  a  confident 
hope  that  Her  Majesty's  Government  will  recognize  the  importance  of 
being  prepared  on  the  frontier  with  a  sufficient  force  either  to  com- 
pel their  surrender  to  our  forces  as  prisoners  of  war,  or  to  disarm  and 
disable  them  from  further  hostilities,  and  subject  them  to  such  con- 

53 


§  18.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

straints  of  surveillance  and  subjection  as  will  preclude  any  further  dis 
turbance  of  the  peace  on  the  frontier." 

Mr.  Evurts,  Sec.  of  State,  to  Sir  E.  Thornton,  May  27.  1879.  MSS.  Notes,  Gr. 
Brit. ;  For.  Rel.,  1879. 

It  is  the  duty  of  the  British  Government  to  take  such  supervision  of 
belligerent  Indians  as  may  prevent  them  from  using  British  territory 
for  purposes  hostile  to  the  United  States. 

Mr.  Evarts,  Sec.  of  State,  to  Sir  E.  Thornton,  Feb.  5, 1881 ;  MSS.  Notes,  Gt.  Brit. ; 
Mr.  Blaine  to  Sir  E.  Thornton,  May  26,  1881 ;  Mr.  Blaine  to  Mr.  Drummond, 
Aug.  25, 1881. 

"  No  one  can  realize  more  than  I  the  delicacy  of  relationship  between 
two  countries  like  ours,  each  of  which  is  compelled  to  maintain  control 
over  savage  tribes  on  its  border ;  and  the  record  of  our  correspondence 
for  years  past  has  shown  how  often  the  patience  and  forbearance  of 
each  Government  has  been  tried  by  the  hostile  and  predatory  acts  com- 
mitted by  those  savages  on  both  sides  of  the  frontier. 

"I  observe  that  your  note  of  the  20th,  following  the  intimation  of  the 
memorandum  of  the  Chihuahua  representatives,  suggests  that  a  special 
treaty  be  concluded  by  which  the  United  States  would  guarantee  to 
disarm  its  Indians,  and  to  endeavor  to  prevent  them  from  disposing, 
within  the  United  States,  of  booty  taken  in  Mexico.  My  impressions 
are  that  stringent  provisions  in  each  Eepublic  rendering  it  as  far  as 
possible  iinpracticable  for  the  Indians  to  dispose  of  their  booty  in  the 
territory  of  the  other  would  be  a  salutary  measure.  The  treaty  rela- 
tions between  the  two  Governments  need  to  be  considered  in  the 
broadest  and  most  liberal  spirit,  and  the  consular  and  commercial  con- 
ventions which  heretofore  existed  between  the  two  Governments  pro- 
tecting  the  rights  of  American  citizens  in  Mexico  restored. 

''You  will,  of  course,  see  that  while  we  are  without  a  convention 
defining  consular  privileges  and  without  any  agreement  fixing  the  rights 
of  American  citizens  and  capital  in  Mexico,  the  relations  of  the  two 
t'ountries  are  more  or  less  exposed  to  unforeseen  contingencies. 

"  Believing,  as  I  do,  that  a  proper  exercise  of  vigilance  and  control 
over  the  hostile  Indians  on  both  sides  of  the  frontier  is  very  necessary 
to  the  interests  of  the  two  countries,  I  will  be  ready  at  any  time  to  co- 
operate with  you  in  agreeing  upon  measures  to  eflect  that  end." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Romero,  April  9,  1883 ;  MSS.  Notes, 
Mex.,  For.  Eel.,  1883 ;  see  also  same  to  same,  April  10,  1883,  id. 

"  I  have  the  honor  to  apprise  you  of  the  receipt  of  a  letter  of  the  Cth 
instant  from  Hon.  H.  M.  Teller,  Secretary  of  the  Interior,  covering  a 
report  made  to  him  by  Mr.  H.  Price,  Commissioner  of  Indian  Affairs, 
touching  the  alleged  recent  invasion  of  the  Mexican  State  of  Sonora  by 
Apache  Indian  from  the  San  Carlos  Reservation  in  Arizona  Territory. 

54 


CHAP.  I.]  BOEDER    INDIANS.  [§  18. 

This  complaint  of  the  Mexican  Government  was  based  upon  certain 
allegations  of  the  Mexican  consul  at  Tombstone,  founded  mainly  upon 
newspaper  reports,  and  formed  the  subject  of  your  note  to  me  of  the 
22d  ultimo. 

"  Mr.  Price's  information  is  obtained  from  persons  who  have  a  personal 
supervision  of  the  San  Carlos  Indians,  and  is  to  the  effect  that  none  of 
them  have  recently  left  the  reservation.  He  states  that  frequent  reports 
made  to  that  ofiQce  by  agents  at  San  Carlos,  and  which  are  believed  to 
be  perfectly  trustworthy,  show  that  the  Apaches  there  have  been  care- 
fully watched,  and  that  all,  without  exception,  are  peaceable,  well  dis- 
posed, and  manifest  not  the  least  sign  of  dissatisfaction,  but  that,  on 
the  contrary,  their  leaders  and  most  influential  men  express  a  desire  to 
fight  the  renegades  from  the  reservations.  Mention  is  also  made  of  a 
recent  dispatch  to  the  Department  of  the  Interior  from  General  Crook, 
in  command  of  the  Department  of  Arizona,  in  which  it  is  stated  that 
the  Indians  who  have  committed  the  depredations  complained  of  in 
Mexico  are  a  small  band  known  as  Chiricahua  Apaches  on  their  way 
back  from  Old  Mexico,  where  they  have  been  living  for  more  than  a 
year  past.  These  Indians  are  understood  to  be  a  troublesome  lot,  and 
General  Crook,  it  is  stated,  promises  to  do  all  that  he  can  to  extermi- 
nate them.  That  officer's  dispatch  also  alleges  that  the  agency  Indians 
are  behaving  well,  not  one  having  left  the  San  Carlos  Reservation,  and 
that  their  assistance  can  be  relied  upon  in  case  of  the  return  of  the 
Chiricahuas. 

"  It  will  be  perceived  that  these  statements  not  only  confirm  and 
strengthen  those  contained  in  my  note  to  you  of  the  10th  instant  upon 
the  same  subject,  but  demonstrate  that  the  San  Carlos  Indians  should 
not  be  held  accountable  for  any  outrages  which  have  been  recently  com- 
mitted in  Mexico  as  alleged.  Neither  is  it  thought  that  the  Mexican 
Government  can  now  question  the  means  instituted  by  the  United  States 
to  preserve  peace  among  those  Indians  or  its  sincerity  in  restraining 
and  keeping  them  within  proper  bounds.  Concerning  the  Chiricahua 
Apaches,  it  is  not  doubted  that  they,  in  connection  with  renegade  In- 
dians of  like  character  belonging  to  Mexico,  have  been  operating  with 
more  or  less  success  on  both  sides  of  the  border,  to  the  injury  of  life,  per- 
son, and  property  of  Americans  and  Mexicans,  citizens  alike ;  or  that 
the  extermination  or  subjugation  of  those  Indians  would  do  much  to 
restore  a  degree  of  peace  and  security  perhaps  not  now  enjoyed  upon 
the  border  of  either  country.  The  Mexican  Government  may  confidently 
rely  upon  the  adoption  by  the  United  States  of  whatever  measures 
may  be  necessary  or  possible  to  rid  its  citizens  of  these  renegade  Chir- 
icahuas should  they  reappear  upon  our  territory,  or  the  authorities  of 
this  Government  will  gladly  act  in  harmony  with  those  of  the  Govern- 
ment of  Mexico  in  endeavoring  to  successfully  control  a  common  enemy 

55 


§  19.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

whose  predatory  raids  are  a  constant  source  of  disquiet  to  the  inhabit- 
ants along  the  borders." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Romero,  April  16,  1883.  MSS.  Notes, 
Mex.,  For.  Rel.,  1883. 

Mr.  Seward's  report  of  Jan.  29,  1864,  as  to  the  correspondence  with  the  axithor- 
ities  of  Great  Britain  in  relation  to  the  proposed  pursuit  of  Indians  into  the 
Hudson  Bay  territories,  is  given  in  Senate  Ex.  Doc.  No.  13,  38th  Cong.,  1st 

8688. 

See  House  Ex.  Doc.  No.  2u7,  43d  Cong.,  Ist  sess ;  House  Rep.  No.  343,  44th 
Cong.,  let  sess.  ;  House  Mis.  Doc.  No.  37,  same  sess. 

On  October  5,  1885,  Mr.  Jackson,  minister  to  Mexico,  was  instructed 
to  renew  the  extension  for  two  years  of  the  agreement  between  the 
United  States  and  Mexico  for  the  reciprocal  crossing  the  border  of 
troops  when  in  pursuit  of  Indian  marauders. 

See  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  Oct.  5,  6,  1885.    MSS.  Inst.,  Mex. 

By  a  dispatch  dated  October  17,  1885,  Mr.  Jackson  informed  the  De- 
partment that  the  above  agreement  had  been  extended  to  November  1, 
1886. 

(2)  Othkk  Marauders. 

§  19. 

The  right  to  pursue  marauders  across  the  border  is  discussed,  supra,  $  18  ;  infra,  $  50. 

"  The  accountability  of  the  Mexican  Government  for  the  losses  sus- 
tained by  citizens  of  the  United  States  from  the  robbery  and  exactions 
committed  at  Guaymas,  in  May  last,  by  the  armed  force  under  the  com- 
mand of  Fortino  Viscaino,  seems  to  be  unquestionable.  That  person 
was  a  subordinate  of  Placido  Vega,  as  appears  by  the  orders  of  the  lat- 
ter to  him,  dated  at  Teacapau  the  18th  of  May.  Those  orders  directed 
Viscaino  to  proceed  in  the  vessel  (meaning  the  Forward)  and  perpe- 
trate the  very  acts  complained  of.  The  orders  were  fulfilled.  It  is 
true  that  Mr.  Sisson,  the  United  States  consular  agent  at  Mazatlan,  in 
his  letter  to  you  of  the  13th  of  June,  represents  that  since  the  evacua- 
tion of  Mexico  by  the  French  the  Government  of  that  Republic  had 
had  no  other  authority  in  the  canton  of  Tepic,  where  the  expedition  of 
the  Forward  was  organized  and  whence  it  proceeded,  than  that  con- 
nived at  by  one  Manuel  Lozada,  of  whom  Placido  Vega  is  supposed  to 
have  been  an  instrument.  Mr.  Sisson,  however,  acknowledges  that  the 
General  Government  had  appointed  a  collector  and  other  officers  in 
that  quarter,  but  adds  that  they  are  creatures  of  Lozada.  He  also  says 
that  he  had  been  informed  by  General  Davalos,  the  commander  at  Ma- 
zatlan, and  by  Mr.  Sessalveda,  the  inspector  of  the  customs  there,  that 
the  General  Government  had  directed  that  its  troops  must  not  invade 
the  territory  of  Lozada.  Whether  this  be  a  fact  or  not,  that  Govern- 
ment, so  long  as  it  shall  claim  jurisdiction  over  that  territory,  must  be 
held  responsible  for  any  injuries  to  citizens  of  the  United  States,  there 
56 


CHAP.  I.]  BORDER  MARAUDERS.  [§  19. 

or  elsewhere,  by  any  force  which  may  have  proceeded  from  the  same 
territory. 

"  lu  times  of  peace  redress  for  such  injuries  may,  in  the  first  instance 
at  least,  be  sought  through  the  judicial  tribunals  of  the  country  where 
they  may  have  been  committed.  When,  however,  they  are  uilenced  or 
overawed  by  the  force  of  arms,  it  seems  a  mockery  to  be  referred  to 
them,  especially  if  there  should  be  any  ground  for  the  charge  that  the 
Mexican  Government  has  willfully  connived  at  a  defiance  of  its  author- 
ity in  the  canton  of  Tepic." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Nelson,  Nov.  16,  1870.  MSS.  Inst.,  Max.,  For.  ReL, 
1871.  (See,  also,  same  to  same,  Dec.  12,  1870,  Id.;  March 29,  1871,  Id. ;  Mr. 
Davis  to  Mr.  Nelson,  Sept.  6, 1871,  Id. ;  Mr.  Fish  to  Mr.  Nelson,  April  13,  1872, 
Id..  For.Rel.,  1872.) 

"  Your  dispatch  No.  279,  of  the  4th  instant,  relative  to  Mexican  raids 
in  Texas,  has  been  received.  The  assurances  of  a  disposition  on  the 
part  of  that  Government  to  check  them,  which  have  been  given  to  you 
by  Mr.  Lafragua,  are  satisfactory,  so  far  as  thoy  go.  Those  maraud- 
ings, however,  have  of  late  been  so  frequent,  bold,  and  destructive,  that 
they  have  occasioned  much  excitement  in  the  public  on  this  side  the 
river,  which  will  probably  lead  to  an  expectation  that  acts  on  the  part 
of  that  Government  will  show  the  sincerity  of  its  professions.  We  are 
informed  that  a  few  of  the  raiders  have  been  arrested  on  the  Mexican 
side,  and  that  probably  they  are  on  the  way  to  the  capital  for  trial.  It 
is  hoped  that,  if  the  proof  should  warrant  their  conviction,  they  will  re- 
ceive a  full  measure  of  punishment  according  to  law,  so  that  their  fate 
may  serve  as  an  example  for  deterring  imitators. 

"I  am  aware  of  no  purpose  here  of  acquiring  an  extension  of  terri- 
tory on  that  frontier.  If,  however,  as  has  been  suggested  to  us,  that 
Government  is  embarrassed  by  the  risk  of  desertions  in  sending  a  regu- 
lar force  to  that  quarter,  it  might  not  be  indisposed  to  allow  United 
States  troops  to  cross  and  temporarily  occupy  the  territory  whence  the 
raiders  are  in  the  habit  of  coming.  The  tract  for  such  occupation  might 
be  embraced  in  a  line  drawn  from  Matamoras  to  Laredo.  You  will  con 
sequently  sound  the  minister  for  foreign  affairs  on  this  point,  and  report 
the  result. 

''  It  may  be  regarded  as  frivolous  to  seek  to  justify  the  hostile  incur 
sions  into  our  territory  on  the  ground  of  retaliation  for  similar  excur- 
sions from  this  side.  There  have  been  none  such,  and  proof  of  the  con- 
trary is  challenged.  Indeed,  the  charge  is  improbable  on  its  face,  from 
the  fact  that  Mexico,  near  the  border,  holds  out  no  temptation  to  plun- 
derers from  this  side,  while  the  reverse  is  the  case  in  respect  to  baits  in 
Texas  for  Mexicans." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  May  20,  1875.     MSS.  Inst.,  Mex.,  For.  Rel., 

1875. 

"  Information  of  a  most  reliable  character  has  reached  this  Depart- 
ment of  the  continued  depredations  of  the  Mexican  citizens  of  Ximenes 

57 


§  19.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

and  the  neighborhood,  under  the  head  of  oue  Areola,  upon  the  Texan 
border.  It  is  reported  ou  the  best  authority  that  the  officer  in  command 
of  the  Mexican  troops  at  Piedras  Negras  is  not  merely  cognizant  of  the 
repeated  thefts  of  American  cattle,  but  that  he  positively  protects  the 
raiders,  furnishing  them  with  arms  on  occasion,  and  is  moreover  a 
receiver  to  a  large  extent  of  the  stolen  property,  feeding  his  troops, 
even,  upon  the  beef. 

******* 

"  Upon  such  a  statement  of  facts  (which  for  sufficient  reasons  is  not 
made  more  definite)  there  can  exist  no  reasonable  doubt  that  the  central 
authority  of  Mexico  should  find  it  feasible  even  in  the  absence  of  sup- 
plementary information  to  pursue  and  rigorously  punish  these  particular 
offenders. 

"You  are  requested  to  bring  this  matter  to  the  immediate  attention 
of  the  Mexican  Government,  making  evident  the  earnestness  with  which 
the  Government  of  the  United  States  presses  these  facts  upon  its  serious 
attention,  to  the  end  that  more  deplorable  events  may  not  follow. 

"  It  will,  of  course,  be  natural  that  in  due  course  of  time  certain  of 
those  citizens  of  the  United  States  who  have  been  despoiled  of  their 
property  by  the  citizens  of  Mexico  will  seek  reclamation,  and  if  some 
satisfactory  recognition  of  the  obligation  of  the  Mexican  Government 
to  amply  provide  for  such  contingencies  should  be  obtained,  it  might 
perhaps  afford  a  greater  facility  to  the  future  adjustment  of  these  cases. 
But  you  will  take  care  to  have  it  understood  that  a  mere  provision  for 
pecuniary  redress  in  this  connection  will  by  no  means  be  regarded  as  in 
anywise  a  satisfaction  for  other  than  the  actual  losses  which  have  been 
sustained.  The  continued  harassing  and  apparently  ceaseless  turmoil 
which  is  kept  up  on  our  otherwise  peaceful  borders  by  these  marauding 
parties  of  Mexicans,  which,  crossing  secretly  and  in  the  darkness  of  the 
night  from  their  own  territory,  emerge  upon  the  farms  and  fields  of 
American  citizens,  carrying  perpetual  alarm  and  dread,  and  rendering 
life  in  that  region  of  our  country  well  nigh  insupportable,  is  not  to  be 
weighed  in  any  common  pecuniary  scale.  The  reclamation  sufficient  to 
meet  the  results  of  a  series  of  raids,  worse  in  their  effects  than  an  abso- 
lute invasion  in  time  of  war,  can  be  no  ordinary  one. 

•'  You  will  present  the  views  of  the  Government  of  the  United  States 
on  the  subject  of  these  repeated  outrages  upon  our  citizens  in  this  light 
in  order  that  the  sense  entertained  of  the  magnitude  of  the  offenses 
committed  may  not  be  underrated  nor  misunderstood." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  Sept.  20,  1878.     MSS  Inst.,  Max. ;  For. 
Eel.,  1878. 

"  Eeferring  to  your  note  of  the  31st  of  July  last,  in  relation  to  certain 

statements  made  to  you  by  the  Mexican  consul  at  San  Antonio,  Tex.,  in 

reference  to  the  organization  of  revolutionary  forces  in  Texas  for  the 

purpose  of  invading  Mexico,  I  have  the  honor  to  inform  you  that  a  let- 

58 


CHAP.  I.]  BORDER    MARAUDERS.  [§19. 

ter  has  been  received  from  the  Secretary  of  War,  communicating:  a  copj" 
of  a  report  from  Captain  Sellers,  commanding;  officer  of  Fort  Mcintosh, 
Texas,  in  which  he  states  that  he  has  no  knowledge  of  any  revolutionary 
bands  having  been  organized  at  Laredo,  or  that  General  Garza  Ayala 
and  Santos  Benavides  have  been  in  charge  of  any  arms,  or  that  they 
have  furnished  any  to  rebels,  or  that  forty  men  left  Laredo  equipped  by 
Santos  Benavides,  as  was  alleged;  neither  has  he  any  knowledge  of  any 
parties  of  rebels  organizing  in  that  vicinity  in  full  view  of  Texan  author- 
ities, or  of  any  cattle  having  been  stolen  from  Mexico  and  driven  to  this 
side,  as  was  also  rei)resented,  although  he  has  used  every  means  to  as- 
certain the  truth;  that  if  Santos  Benavides  or  others  have  been  en- 
gaged in  enlisting  such  men  as  is  represented,  it  has  been  done  so 
quietly  that  none  but  those  concerned  know  anything  about  it,  and 
that  if  Santos  Benavides,  as  is  also  represented,  had  addressed  a  party 
of  rebels  at  Laredo,  promising  them  to  turn  over  the  town  of  New  La- 
redo to  pillage,  &c.,  it  is  almost  certain  that  the  War  Department  would 
have  been  informed  of  the  fact.  He  adds,  there  is  no  doubt  that  San- 
tos Benavides  and  his  brothers  are  strong  adherents  of  Lerdo,  and 
that  he  heard  that  arms  were  consigned  to  them  for  the  revolutionists, 
but  has  never  been  able  to  obtain  any  facts  in  regard  to  it;  that  New 
Laredo  has  had  its  representatives  in  Laredo  to  watch  any  revolution- 
ary movement,  and  if  the  alleged  occurrences  were  reported  by  them  to 
the  proper  authorities  he  has  no  knowledge  of  the  fa*bt. 

"  In  reference  to  the  reported  crossing  the  frontier  on  the  25th  May  by 
the  revolutionary  bauds,  he  had  made  inquiry  of  General  Sykes,  com- 
manding the  district  of  the  Rio  Grande,  who  stated  that  he  knew  noth- 
ing of  such  crossing,  and  as  to  the  accusation  made  against  Mr.  Adams, 
he  is  confident  that  it  is  a  slander,  and  that,  in  his  opinion,  the  report . 
was  made  by  Santiago  Sanchez,  between  whom  and  Mr.  Adams  there 
was  a  personal  quarrel ;  that  Isidore  Salinas  and  Pablo  Quintana  are 
doubtless  guilty  of  all  charged  to  them,  and  might  have  been  arrested 
long  ago  if  the  Mexican  authorities  wanted  them ;  that  he  has  frequently 
advised  the  proper  authorities  of  New  Laredo  to  make  complaints 
against  Salinas  and  other  revolutionists  before  the  United  States  com- 
missioner at  this  place,  in  order  that  they  could  be  arrested  when  found 
here,  and  that  he  was  informed  by  the  county  judge  of  Webb  County 
that  the  latter  had  never  been  applied  to,  either  personally  or  officially, 
by  the  Mexican  authorities,  to  arrest  revolutionists  or  rebels.     *     *     * 

"  I  transmit  the  information  thus  received,  believing  that  you  will 
recognize  in  it  a  complete  exculpation  of  the  authorities  of  this  Govern- 
ment upon  the  frontier,  inasmuch  as  the  facts  thus  presented  seem  to 
show  a  lukewarmness  and  inefficiency  on  the  Mexican  side  in  singular 
contrast  with  the  loyal  and  frank  manner  in  which  the  officers  of  the 
United  States  have  attempted  to  fulfill  the  international  duty  resting 
upon  them  to  contribute  by  all  the  effective  means  in  their  power  to  the 

59 


^  19.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

preservation  of  order  and  the  repression  of  lawless  force.  It  is  to  be  re- 
gretted that  their  efforts  were  not  promptly  responded  to  in  the  same 
spirit  as  that  iu  which  they  were  made." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Zamacona,  Oct.  30,  1878.    MSS.  Notes,  Mex., 

For.  Rel.,  1878. 
As  to  duty  of  the  Domiuiou  Government  to  repress  wreckers  ou  the  lakes,  see 
Mr.  Evarts,  Sec.  of  State,  to  Sir  E.  Thornton,  June  13,  1879.    MSS.  Notes, 
Gr.Brit.  ;   For.  Rel.,  1879. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  8th 
instant  in  reference  to  the  proceedings  of  a  mob  near  Willcox,  Pima 
County,  Arizona,  which  resulted  in  the  hanging  of  one  man  and  the 
mysterious  disappearance  of  another,  who  was  held  a  prisoner  in  the 
hands  of  those  engaged  in  the  outrage,  and  I  also  acknowledge  the 
receipt  of  your  notes  of  the  15th  and  18th  instant,  respectively,  both 
referring  to  cases  of  plunder  by  marauding  bauds,  unfortunately  so 
common  to  both  sides  of  the  border  between  the  two  Republics. 

"Replying  to  these  several  notes  I  do  myself  the  honor  to  state  for 
your  information,  and  for  that  of  the  Government  you  so  worthily  rep- 
resent, that  I  have  addressed  a  letter  to  the  governor  of  Arizona,  in- 
closing a  copy  of  each  of  the  notes  in  question  and  requesting  him  to 
institute  an  iuvestigatiou,  under  the  direction  of  the  United  States 
district  attorney  or  such  other  Federal  officer  as  he,  the  governor, 
might  deem  proper  to  select,  into  all  the  facts  and  circumstances  ot 
the  affair  in  Pima  County,  and  urging  upon  his  excellency  at  the  same 
time  the  importance  of  using  every  available  means  within  the  power 
of  the  Territorial  executive  authorities  to  have  the  instigators  and 
perpetrators  of  the  outrage  discovered  and  brought  to  trial. 

"In  this  same  communication  Governor  Fremont  was  requested  and 
earnestly  urged  to  adopt  such  measures  as,  in  his  judgment,  might 
prove  most  effective  in  i)romoting  increased  vigilance  on  the  part  of 
the  local  authorities  of  the  border  counties  of  Arizona,  with  a  view  to 
the  suppression  of  these  lawless  raiding  parties  who  appear  to  be  or- 
ganized on  each  side  of  the  boundary  line  for  purposes  of  robbery 
and  indiscriminate  plunder. 

"The  fact  is  too  well  authenticated  to  be  unknown  to  the  Mexican 
Government,  as  it  is  well  known  to  this,  that  these  bands  are  generally, 
if  not  altogether  made  up  of  Mexicans  and  Americans  who  give  them- 
selves no  care  as  to  the  nationality  of  their  comrades  in  crime,  and 
entertain  a  common  disregard  for  the  laws  of  either  country. 

"  While  these  conditions  exist  it  is  only  by  corresponding  vigilance 
of  the  authorities  on  either  side  of  the  line  that  a  suppression  of  these 
marauding  bauds  can  be  hoped  for.  I  can  give  you  the  assurance  that 
no  effort  will  be  spared  by  this  Government  which  may  give  promise 
of  that  result." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Zamacona,  Aug.  20,  1881.    MSS.  Notes,  Mex.; 
For.  Rel.,  1881. 
GO 


CHAP.  I.]  BORDER  MARAUDERS.  [§  19. 

"  The  feasibility  of  adopting  specific  measures  for  the  prevention  of 
lawless  incursions  upon  either  side  of  the  Rio  Grande  is  a  subject,  I 
beg  to  assure  .you,  which  has  not  failed  of  earnest  attention  by  this 
Government  as  well  as  by  the  authorities  of  the  State  of  Texas  and  the 
adjacent  Territories ;  and  while  any  proposition  for  summary  Govern- 
ment action  which  contemplates  individual  restraint  for  precautionary 
rather  than  penal  cause  must  encounter  objections  of  serious  weight, 
such  objections  have  no  place  in  the  established  or  suggested  systems, 
which,  aiming  at  regular  defined  and  ascertained  ofi'enses,  seek  in- 
directly to  deter  from  other  and  more  grievous  crime. 

"Hence,  upon  the  presentation  of  the  subject  by  Mr.  Eomero's  note 
of  January  20  and  April  11  last,  the  Department  took  means  to  ascer- 
tain more  accurately  the  extent  to  which  the  purpose  of  preventing 
these  too  frequent  expeditions  was  represented  in  the  enactments  gov- 
erning the  districts  upon  this  side  of  the  border,  and  I  am  gratified 
now  to  be  able  to  communicate  the  general  character  of  the  informa- 
tion obtained. 

"It  has  long  been  manifest  that  plunder  was  a  principal  motive  for 
the  excursions  which  hgive  emanated  either  from  Mexico  or  the  United 
States,  and,  recognizing  the  impracticability  of  restraining  completely 
the  departure  or  return  of  evil-minded  persons  across  a  border  of  such 
considerable  extent,  the  efforts  of  the  legislature  have  been  to  so  in- 
crease the  difficulties  of  realizing  profits  from  unlawfully  acquired  prop- 
erty that  the  attempts  to  obtain  such  property  would  lessen. 

"Accordingly,  and  auxiliary  to  proceedings  against  the  actual 
offender,  the  legislatures  of  the  two  Territories  have  made  ample  and 
exceptional  provisions  affecting  the  receivers  or  sellers  of  stolen  prop- 
erty. In  Arizona  these  withdraw  from  the  possessor,  though  innocent, 
any  security  of  title  against  the  original  owner,  and  if  the  latter  follows 
his  property  with  reasonable  proof  he  can  thus  always  recover  it  by 
judicial  assistance.  So,  too,  these  statutes  are  particularly  considerate 
of  the  safety  of  all  live  property,  which  is  peculiarly  a  subject  of  plun- 
der, and  by  heavy  penalties  require  the  branding  system  and  guard 
against  any  but  notable  and  formal  alteration  of  the  marks,  and  by 
many  severe  restrictions  tend  to  render  difficult  and  improbable  any 
but  open  and  lawful  dealings  in  this  important  species  of  property. 

"In  Is^ew  Mexico  the  larceny  of  a  branded  animal  is  a  felony,  with- 
out reference  to  its  value,  and  in  Arizona  such  offense  is  grand  larceny, 
as  may  be  that  of  the  receivers.  In  neither  is  it  considered  that  these 
and  other  provisions  would  be  inapplicable  in  the  case  of  property 
stolen  in  Mexico  and  brought  across  the  border. 

"I  am  uninformed  as  to  whether  the  neighboring  States  of  Mexico 
have  enactments  of  equal  extent,  but  presume  that  the  similarity  of  oc- 
cupations, interests,  and  necessity  have  prompted  measures  in  this 
direction,  and  while  existing  facilities  in  this  country  may  prove  not 
entirely  adequate  to  preventing  the  evils  in  question,  they  seem  a  vig- 

61 


§  20.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

orous  attempt,  and  if  individual  instances  under  these  laws  were  reso- 
Intcly  prosecuted,  with  the  aid  of  those  wronged,  the  hazard  of  theft 
should  constantly  increase  and  in  that  proportion  would  its  attempts 
be  avoided.  As  illustrating  the  readiness  and  desire  of  the  people  of 
this  country  to  make  use  of  any  new  expedient  seemingly  adapted  to 
the  repression  of  this  organized  plundering,  I  beg  to  refer  to  a  letter 
recently  submitted  here  from  the  acting  governor  of  Arizona. 

"  In  counseling  upon  the  subject  he  remarks :  '  I  think  a  mounted 
police  or  military  force  should  be  posted  in  such  manner  as  to  guard 
the  passes  between  the  mountains  on  the  border  through  which  stolen 
cattle  are  driven  and  through  which  smugglers  and  raiding  Indian 
bands  pass  to  and  from  ^lexico,'  and  adds  that  this  opinion,  which  is 
shared  bj'  all  intelligent  men  of  the  Territory,  had  expression  in  a  bill 
introduced  at  the  late  session  o^  the  legislature,  but  too  late  for  final 
action. 

"  Should  it  prove  possible  for  the  frontier  States  to  supplement  their 
existing  laws  with  direct  measures  of  the  above  nature,  it  might  confi- 
dently be  expected,  in  conjunction  with  a  similar  system  in  Mexico, 
that  conditions  which  have  so  long  and  persistently  threatened  the 
population  of  both  countries  would  be  speedily  and  favorably  affected." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Romero,  Sept.  15,1883.  MSS.  Notes 
Mex.  ;  For.  Rel.,  1883. 

As  to  duty  of  Mexico  to  punish  or  extradite  marauders  on  territory  of  the 
United  States,  see  further,  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  Dec.  7, 
1877.  MSS.  Inst.  Mex.;  For.  Rel.,  1878.  Mr.  F.  W.  Seward,  Acting  Sec.  of 
State,  to  Mr.  Foster,  Jan.  15, 1879.   MSS.  Inst.  Mex, ;   For.  Rel.,  1879. 

(3)  Diversion  or  Obstruction  of  Water. 

§20. 

"I  transmit  herewith,  for  your  information  in  the  premises  and  for 
your  guidance  in  any  future  action  that  may  be  indicated  to  you,  should 
any  such  appear  to  be  necessary,  a  copy  of  a  letter  of  the  10th  ultimo, 
together  with  its  various  inclosures,  from  the  governor  of  the  State  of 
Texas,  asking  the  intervention  of  the  General  Government  in  a  matter 
of  vital  importance  to  the  citizens  of  that  State  living  on  the  eastern 
.shore  of  the  Eio  Grande. 

"The  inclosures,  as  you  will  see,  consist  of  the  statement  of  the  county 
judge  of  El  Paso  County  and  petitions  signed  by  prominent  citizens  of 
San  Eliza rio  and  Socorro. 

"The  ground  of  complaint,  as  alleged,  is  that  the  Mexicans  engaged 
in  agricultural  pursuits  on  the  Mexican  shore  of  the  river  are  in  the 
habit  of  diverting  all  the  water  that  comes  down  the  river  during  the 
dry  season  into  their  ditches,  thereby  preventing  our  citizens  from  get- 
ting suflBeient  water  to  irrigate  their  crops. 

"This,  if  true,  would  be  in  direct  opposition  to  the  recognized  rights 
of  riparian  owners,  and  if  persisted  in  must  result  in  disaster  and  ruin 
62 


CHAP.  I.]  BOEDER    WATERCOURSES.  [§  20. 

to  our  farming  population  on  the  line  of  the  Rio  Grande,  and  might 
eventually,  if  not  amicably  adjusted  through  the  medium  of  diplomatic 
intervention,  be  productive  of  constant  strife  and  breaches  of  the  peace 
between  the  inhabitants  of  eitlier  shore. 

"I  have  addressed  a  note  to  the  Mexican  minister  at  this  cai)ital,  re- 
questing him  to  bring  the  matter  to  the  attention  of  his  Government, 
with  a  view  to  obtaining,  if  possible,  alleviation  from  these  annoyances. 

"You  will,  therefore,  investigate  the  matter  as  carefully  and  thor- 
oughly as  possible,  and  will  report  the  result  to  the  Department,  when, 
should  the  facts  be  found  to  bear  out  the  allegations  set  forth  in  the 
inclosed  correspondence,  further  action  will  be  taken  in  the  premises." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Morgan,  June  12,  1880.     MSS.  Inst.,  Mex. ; 
For.  Eel.,  1880. 

"I  have  the  honor  to  solicit  your  most  earnest  attention  to  a  matter 
of  vital  importance  to  the  citizens  of  the  State  of  Texas  engaged  in  agri 
cultural  pursuits  on  the  eastern  shore  of  the  Eio  Grande. 

"A  statement  of  the  facts  as  alleged  is  given  in  inclosed  copies  of  cor- 
respondence, consisting  of  a  letter  addressed  to  the  Secretary  of  State 
by  the  governor  of  Texas,  and  the  inclosures  therein  contained,  being 
the  statement  of  the  county  judge  of  El  Paso  County  and  petitions 
signed  by  several  hundred  citizens  of  San  Elizario  and  Socorro. 

"The  trouble  complained  of  appears  to  be  the  result  of  the  action  of 
the  Mexican  population  on  the  western  shore  of  the  river  in  diverting, 
into  ditches  dug  for  that  i)urpose,  the  small  quantity  of  water  that  finds 
its  way  down  during  the  dry  season,  thereby  totally  depriving  the  agri- 
culturists on  the  eastern  or  Texan  shore  of  the  means  of  irrigating  their 
crops,  and  thus  cutting  ofl"  their  sole  means  of  livelihood.  As  this  is  not 
only  in  direct  opposition  to  the  recognized  rights  of  riparian  proprietors, 
but  is  also  contrary  to  that  good  feeling  and  harmony  which  ought  to 
exist  between  colaborers  in  peaceful  pursuits,  and  might,  moreover,  if 
permitted  to  continue,  result  in  bitter  feeling  and  possible  breaches  of 
the  peace,  I  most  earnestly  request,  in  these  high  interests,  that  you 
will  have  the  goodness  to  bring  the  matter  to  the  attention  of  your  Gov- 
ernment with  a  view  to  procuring  a  cessation  of  the  annoyance  com- 
plained of. 

"I  shall  be  happy  to  co-operate  with  you  in  any  way  tending  to  pro- 
duce the  desired  result,  and  have,  to  that  end,  already  instructed  the 
minister  of  the  United  States  at  Mexico  to  put  himself  in  communica- 
tion with  your  Government  on  the  subject,  and  should  the  facts  prove, 
upon  investigation,  to  be  as  stated,  to  endeavor  to  have  the  injustice 
complained  of  put  an  end  to." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Navarro,  June  15,  1880.     MSS.  Notes,  Mex.; 
For.  Eel.,.  1880, 

The  erection  of  works  on  the  Meduxnikik  Eiver  in  Few  Brunswick 
in  such  a  way  as  to  obstruct  the  flow  of  water  in  Maine,  and  to  in- 

63 


^S  21.]  SOVEREIGNTY  OVER  LAND.  [CHAP.  I. 

Jure  the  lumbering  business  in  that  State,  is  a  proper  subject  tor  dip- 
lomatic interposition  by  this  Government. 

Mr.  Frclinghuysen,  Sec.  of  State,  to  Mr.  Lowell,  May  16,  1884.  MSS.  Inst., 
Great  Britain. 

A  party  doing  an  injury  in  one  State  to  a  water-power  running  into 
another  State,  may  be  proceeded  against  in  civil  suit  in  either  State  in 
which  he  may  be  served  with  process  ;  though  proceedings  in  rem^  by 
way  of  injunction  or  indictment  to  compel  abatement,  can  only  be 
brought  in  the  jurisdiction  in  which  the  nuisance  exists. 

See  6  Crim.  Law  Mag.,  169  ;  Stillman  v.  Man.  Co.,  3  Wood,  and  M.,  538;  Foot  v. 
Edwards,  2  Blatch.,  310;  Miss,  and  Mo.  R.  R.  v.  Ward,  2  Black,  485; 
Wooster  v.  Man.  Co.,  31  Me.,  246;  In  re  Eldred,  46  Wis.,  530;  Thayer  r. 
Brooks,  17  Ohio,  489;  Armendiaz  v.  Stillman,  54  Tex.,  623. 

XVIII.     WHEN   HARM   IS    DONE  BY   ORDER    OF  FOREIGN  SOVEREIGN, 
SUCH  SOVEREIGN  IS  THE  ACCOUNTABLE  PARTY. 

§21. 

There  is  no  question  that  this  rule  holds  good  where  the  injury  in 
question  is  done  by  a  foreign  sovereign's  order,  or  by  his  of&cerSj  on 
the  high  seas. 

Infra,  §$  227,  228. 

Nor  is  there  any  question  that  when  such  injury  is  done  on  land  as 
part  of  a  warlike  attack,  the  sovereign  is  responsible ;  though  the  party 
acting  under  his  directions  is  responsible  under  the  laws  of  war. 

1  Op.,  81,  Lee,  1797,  infra,  ^^  223,  224. 

But  when  the  agent  of  a  sovereign  with  whom  we  are  at  peace  enters 
our  territory  and  there  inflicts  an  injury,  whether  such  agent  can  set  up 
in  bar  of  a  prosecution  that  he  acted  under  his  sovereign's  orders,  is  a 
question  tliat  was  much  discussed  in  connection  with  the  trial  in  New 
York  of  INIcLeod,  in  1841,  for  the  murder,  some  years  before,  of  a  per- 
son killed  in  the  attack  on  the  Caroline,  in  the  port  of  Schlosser,  in 
New  York.  The  Caroline  was  in  the  employ  of  insurgents  attempting 
the  overthrow  of  the  Canadian  Government ;  and  the  attack  was  made 
on  her  by  Canadian  authority,  the  invasion  of  the  territory  of  the 
United  States  being  excused  on  the  ground  of  necessity. 
See  as  to  question  of  necessity,  infra,  §  50. 

To  this  case  the  following  extracts  relate: 

"That  an  individual  forming  part  of  a  public  force  and  acting  under 
the  authority  of  his  Government,  is  not  to  be  held  answerable  as  a  pri- 
vate trespasser  or  malefactor,  is  a  principle  of  public  law  sanctioned 
by  the  usages  of  all  civilized  nations,  and  which  the  Government  of  the 
United  States  has  no  inclination  to  dispute.  This  has  no  connection 
whatever  with  the  question  whether  in  this  case  the  attack  on  the  Caro- 
line was,  as  the  British  Government  thinks,  a  justifiable  employment  of 
64 


CHAP.  1.]  m'leod's  case.  [s^  21. 

force  for  the  purpose  of  defending  the  British  territory  from  unpro- 
voked attack,  or  whether  it  was  a  most  unjustifiable  invasion  in  time  of 
peace  of  the  territory  of  the  United  States,  as  this  Government  has  re- 
garded it.  The  two  questions  are  essentially  different,  and  while  ac- 
knowledging that  an  individual  may  claim  immunity  from  the  conse- 
quences of  acts  done  by  him,  by  showing  that  he  acted  under  national 
authority,  this  Government  is  not  to  be  understood  as  changing  the 
opinions  which  it  has  heretofore  expressed,  in  regard  to  the  real  nature 
of  the  transaction  which  resulted  in  the  destruction  of  the  Caroline. 
That  subject  it  is  not  necessary  for  any  purpose  connected  with  this 
communication  to  discuss.  The  views  of  this  Government  in  relation 
to  it  are  known  to  that  of  England,  and  we  are  expecting  the  answer 
of  that  Government  to  the  communication  which  has  been  made  to  it. 
"  All  that  is  intended  to  be  said  at  present  is,  that  the  attack  on  the 
Caroline  is  avowed  as  a  national  act,  which  may  justify  reprisals  or 
even  general  war  if  the  Government  of  the  United  States,  in  the  judg- 
ment which  it  shall  form  of  the  transaction  and  of  its  own  duty,  should 
see  tit  so  to  decide,  yet  that  it  raises  a  question  entirely  public  and 
political,  a  question  between  independent  nations,  and  that  individuals 
connected  in  it  cannot  be  arrested  and  tried  before  the  ordinary  tri- 
bunals as  for  the  violation  of  municipal  law.  If  the  attack  on  the 
Caroline  was  unjustifiable,  as  this  Government  has  asserted,  the  law 
which  has  been  violated  is  the  law  of  nations,  and  the  redress  which  is 
to  be  sought  is  the  redress  authorized  in  such  cases  by  the  provisions 
of  that  code." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Crittenden,  15  March,  1841.     MSS.  Dom.  Let. 

"  This  Government  has  admitted  that  for  an  act  committed  by  the 
command  of  his  sovereign,  jure  belli,  an  individual  cannot  be  responsible 
in  the  ordinary  courts  «f  another  state.  It  would  regard  it  as  a  high 
indignity  if  a  citizen  of  its  own,  acting  under  its  authority  and  by  its 
special  command  in  such  cases,  were  held  to  answer  in  a  municipal 
tribunal,  and  to  undergo  punishment  as  if  the  behest  of  his  Government 
were  no  defense  or  protection  to  him. 

"  But  your  lordship  is  aware  that,  in  regular  constitutional  govern- 
ments, persons  arrested  on  charges  of  high  crimes  can  only  be  discharged 
by  some  judicial  proceeding.  It  is  so  in  England  ;  it  is  so  in  the  col- 
onies and  provinces  of  England.  The  forms  of  judicial  proceeding  differ 
in  different  countries,  being  more  rapid  in  some  and  more  dilatory  in 
others,  and,  it  may  be  added,  generally  more  dilatory,  or  at  least  more 
cautious  in  cases  affecting  life,  in  governments  of  a  strictly  limited 
than  in  those  of  a  more  unlimited  character.  It  was  a  subject  of 
regret  that  the  release  of  McLeod  was  so  long  delayed.  A  State  court, 
and  that  not  of  the  highest  jurisdiction,  decided  that,  on  summary 
application,  embarrassed  as  it  would  appear  by  tec'hnical  difQculties. 
he  could  not  be  released  by  that  court.  His  discharge,  shortly  after- 
wards, by  a  jury  to  whom  he  preferred  to  submit  his  case,  rendered 
S.  Mis.  162-vOL.  I 5  65 


§  21. J  SOVEREIGNTY  OVER  LAND.  [CHAP,  I. 

uniu'cessary  the  further  prosecution  of  the  legal  question.  It  is  for  the 
Con<rress  of  the  United  States,  whose  attention  has  been  called  to  the 
subject,  to  say  what  further  provision  ought  to* be  made  to  expedite 
proceediujjs  in  such  cases;  and,  in  answer  to  your  lordship's  question 
towards  the  close  of  your  note,  1  have  to  say  that  the  Government 
of  the  United  States  holds  itself  not  only  fully  disposed  but  fully 
coini)etent  to  carry  into  practice  every  principle  which  it  avows  or 
acknowledges,  and  to  fulfill  every  duty  and  obligation  which  it  owes  to 
foreign  governments,  their  citizens  or  subjects." 

Mr.  Webater,  Sec.  of  State,  to  Lord  Ashburton,  Aug.  6, 1842.  MSS.  Notes. 
Great  Britain. 
Mr.  Calhoun,  on  June  11, 1841,  when  the  position  taken  by  the  British 
Government  in  McLeod's  case  was  under  discussion  in  the  Senate, 
stated  that  position  to  be  "that  where  a  government  authorizes  or 
approves  of  the  act  of  an  individual  it  makes  it  the  act  of  the  govern- 
ment, and  thereby  exempts  the  individual  from  all  responsibility  to  the 
injured  eountry,"  which  principle,  Mr.  Calhoun  went  on  to  say,  was 
accepted  by  the  Secretary  of  State,  Mr.  Webster.  This  principle  Mr. 
Calhoun  controverted.  "The  laws  of  nations,"  he  said,  "are  but  the 
laws  of  morals,  as  applicable  to  individuals,  so  far  modified,  and  no 
further,  as  reason  may  make  necessary  in  their  application  to  nations. 
Now,  there  can  be  no  doubt  that  the  analogous  rule,  when  applied  to 
individuals,  is  that  both  principal  and  agents,  or,  if  you  will,  instru- 
ments, are  responsible  in  criminal  cases;  directly'  the  reverse  of  the 
rule  on  which  the  demand  for  the  release  of  McLeod  is  made.  *  ^  *  * 
Suppose  that  the  British  or  any  other  Government,  in  contemplation  of 
war,  should  send  out  emissaries  to  blow  up  the  fortifications  erected 
for  the  defense  of  our  great  commercial  marts,  *  *  *  would  the 
production  of  the  most  authentic  papers,  signed  by  all  the  authorities 
of  the  British  Government,  make  it  a  public  transaction,  and  exempt 
the  villains  from  all  responsibility  to  our  laws  and  tribunals  ?  Or  would 
that  Government  dare  to  make  a  demand  for  their  immediate  release? 
Or,  if  made,  would  ours  dare  to  yield  to  it  and  release  them?  *  *  * 
But  .setting  aside  all  supposititious  caseis,  I  shall  take  one  that  actually 
occurred,  that  of  the  notorious  Henry,  employed  by  the  colonial  author- 
ity of  Canada  to  tamper  with  a  portion  of  our  people,  prior  to  the  late 
war,  with  the  intention  of  alienating  them  from  their  Government  and 
eflfecting  di.sunion  in  the  event  of  hostilities.  Suppose  he  had  been  de- 
tected and  arrested  for  his  treasonable  conduct,  and  that  the  British 
Government  had  made  the  like  demand  for  his  release  on  th^  ground 
that  he  wa.s  executing  the  orders  of  his  Government,  and  was  not,  th(jre- 
fore,  liable  personally  and  individually  to  our  laws  and  tribunals.  I 
ask,  would  our  G^i-ernment  be  bound  to  comply  with  the  demand?" 
Mr.  Calhoun,  after  accei)ting  the  position  taken  by  Mr.  Webster,  that 
the  case  was  not  one  of  war,  proceeded  to  say  that  the  attack  on  the 
Caroline  was  an  invasion  of  the  territorial  sovereignty  of  the  United 
66 


CHAP.  I.]  m'leod's  case.  [§  21. 

States  uot  justified  by  necessity,  aud  that  persons  concerned  in  such 
attack  were  responsible  to  the  State  of  New  York  for  the  wrongs  done 
by  them  in  it. 

3  Calhoun's  Works,  018.  (See,  fiirtlior,  on  the  whole  question,  3  Lawrence, 
Com.  droit,  int.,  430.) 

To  admit  to  its  full  extent  the  principle  that  we  cannot  subject  to  our 
municipal  laws  aliens  who  violate  such  laws  under  direction  of  their 
sovereigns,  would  be  to  give  such  sovereigns  jurisdiction  over  our  soil, 
and  to  surrender  pro  tanto  our  territorial  sovereignty.  The  British 
demand  for  the  surrender  of  McLeod  can  only  be  sustained  on  the 
ground  that  the  attack  on  the  Caroline  was  excusable  on  the  plea  of 
necessity. 

See,  further,  infra,  §  50c. 

"Then  the  violence  and  bad  spirit  displayed  in  America  have  pro- 
duced no  small  consternation  here,  though  everybody  goes  on  saying 
that  a  war  between  the  two  countries  and  for  so  httle  cause  is  impossi- 
ble. It  does  seem  impossible,  and  the  manifest  interest  of  both  nations 
is  opposed  to  it;  but  when  a  country  is  so  mob-governed  as  America, 
and  the  Executive  is  so  destitute  of  power,  there  must  be  great  danger. 
However,  the  general  conviction  is,  that  the  present  exhibition  of 
violence  is  attributable  to  the  malignity  of  the  outgoing  party,  which  is 
desirous  of  embarrassing  their  successors,  and  casting  on  them  the 
perils  of  a  war  or  the  odium  of  a  reconciliation  with  this  country,  and 
strong  hopes  are  entertained  that  the  new  government  will  be  too  wise 
to  fall  into  the  snare  that  is  laid  for  them,  and  strong  enough  to  check 
aud  master  the  bad  spirit  which  is  rife  in  the  Northern  States.  The 
real  dithculty  arises  from  the  conviction  here,  that  in  the  case  of 
McLeod  we  are  in  the  right,  and  the  equally  strong  conviction  there 
that  we  are  not,  and  the  actual  doubt  on  which  side  the  truth  lies. 
Senior,  whom  1  met  the  other  day,  expressed  great  uncertainty,  and  he 
proposes  and  has  written  to  Government  on  the  subject,  that  the  ques- 
tion of  international  law  shall  be  submitted  to  the  decision  of  a  Ger- 
man university — that  of  Berlin,  he  thinks,  would  be  the  best.  This 
idea  he  submitted  to  Stevenson,  who  approved  of  it,  but  the  great  dif- 
ficulty would  be  to  agree  upon  a  statement  of  facts.  Yesterday  Lord 
Lyndhurst  was  at  the  council  oflice,  talking  over  the  matter  with  Sir 
Herbert  Jenner  and  Justice  Littledale,  and  he  said  it  was  very  ques- 
tionable if  the  Americans  had  uot  right  on  their  side;  and  that  he 
thought,  in  a  similar  case  here,  we  should  be  obliged  to  try  the  man, 
and  if  convicted,  nothing  but  a  pardon  could  save  him.  These  opin- 
ions, casting  such  serious  doubts  on  the  question  of  right,  are  at  least 
enough  to  restrain  indignation  aud  beget  caution." 

Greville's  Memoirs,  March  12, 1841,  vol.  1,  second  series. 

Portions  of  the  correspondence  with  Great  Britain  in  respect  to  the  Caroline 
and  the  imprisonment  of  McLeod  will  be  found  in  the  British  and  Foreign 
State  Papers  for  1837-'38,  vol.  20,  l:'.73;  1840-'4l,  vol.  29,  n26. 

For  preliminary  correspondence,  see  Mr.  Forsyth,  Sec.  of  State,  to  Mr.  .Ste- 
venson, March  12, 1838  ;  MSS.  Inst.,  Gr.  Brit'. ;  Mr.  Webster,  Sec.  of  State,  to 
Mr.  Fox,  April  24, 1841 ;  MSS.  Notes,  Gr.  Brit. 

As  concurring  with  Mr.  Calhoun  may  be  cited  Dr.  Lieber;  Lieber's  Life,  140; 
Mr.  Benton,  2  Benton's  Thirty  Years,  «fec.,437.  (Sec,  also,  11  John  Quincy 
Adams's  Mem.,  25 ;  4  Bost.  Law  Rep.,  109 ;  McLeod's  Trial,  by  Gould,  pamp. ; 
Neilson's  Choate,  215;  1  Am.  Law  Mag.,  348;  Globe  newspaper,  1841,  App., 
422;  Lawrence,  Com.  sur  droit  int.,  Ill,  430;  18  Alb.  L.J. ,506;  1  Op.  Att'y 
Gen.,  45,  Bradford,  1794;  same  vol.,  81,  Lee,  1797;  Phillips  v.  Eyre,L.R.6 
Q.B.  1,24.) 

The  proceedings  are  reported  in  People  v.  McLeod,  25  Wend.,  596.  (See  review 
bv  Judge  Tallmadge,  26  Wend.,  603,  Append.) 

67 


§21.]  SOVEREIGNTY    OVER    LAND.  [CHAP.  I. 

General  Halleck  (1  Int.  Low,  Baker's  ed.,  431),  in  discussing  McLeod's 
case,  says:  "As  McLeod  was  acquitted  on  this  trial,  there  was  no  oppor- 
tunity to  obtain,  by  appeiil  to  the  Federal  courts,  an  opinion  of  the  high- 
est tribunal  of  the  United  States  on  this  important  question,  and  the 
subseqxcnt  act  of  Congress  has  obviated  all  danger  of  the  recurrence  of  a 
similar  case.  The  opinion  of  Mr.  Justice  Cowen,  however,  seems  not  to 
have  received  the  approbation  of  the  best  judicial  minds  of  his  own 
State,  and  to  have  been  very  generally  condemned  in  other  States  and 
by  the  political  authorities  of  the  Federal  Government."  And  he  goes 
on  to  say  that  "among  European  writers  on  public  law  there  seems  to 
be  a  general  unanimity  of  opinion"  sustaining  Mr.  Webster's  view. 
But  the  act  of  Congress  which  General  Halleck  cites  does  not  settle  the 
law,  but  only  indicates  a  way  in  which  such  cases  may  be  reached  by 
the  Federal  courts. 

Sir  R,  Phillimore  (3  Int.  Law,  3d  ed.,  1885,  60)  appears  to  accept  Mr. 
Webster's  conclusions,  but,  unaware  of  the  Federal  legislation  that  suc- 
ceeded the  trial,  comments  on  the  inadequacy  of  the  Federal  system  to 
meet  cases  of  this  class. 

Mr.  Hall  (Int.  Law,  §  102)  cites  Mr.  Webster's  conclusions  without 
dissent,  and  declares  that  "  when  a  state  in  the  exercise  of  its  right  of 
self-preservation,  does  acts  of  violence  within  the  territory  of  a  foreign 
state,  while  remaining  at  peace  with  it,  its  agents  cannot  be  tried  for 
the  murder  of  persons  killed  by  them,  nor  are  they  liable  to  a  civil  ac- 
tion in  respect  to  damages  to  property  which  they  may  have  caused." 

The  statute  to  which  the  McLeod  case  gave  rise,  and  which  allows  an 
ai)i)eal  to  the  Federal  courts  in  cases  of  the  same  class,  is  incor])orated 
as  follows  in  the  Eevised  Statutes  : 

Sec.  752.  The  several  justices  and  judges  of  the  said  [Federal]  courts, 
within  their  respective  jurisdictions,  shall  have  power  to  grant  writs  of 
habeas  corpus  for  the  purpose  of  an  inquiry  into  the  cause  of  restraint 
of  liberty. 

>J4  Sept.,  1789,  c.  20,  s.  14,  v.  1,  p.  81 ;  10  April,  1869,  c.  22,  s.  2,  v.  16,  p.  44  ;  2 
Mar.,  1833,  c.  57,  s.  7,  v.  4,  p.  634  ;  5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385  ;  29 
Aug.,  1842,  c.  257,  a.  1,  v.  5,  p.  539. 

Sec.  753.  The  writ  of  habeas  corpus  shall  in  no  case  extend  to  a 
j)risoner  in  jail,  unless  where  he  is  in  custody  under  or  by  color  of  the 
autliority  of  the  United  States,  or  is  committed  for  trial  before  some 
court  thereof;  or  is  in  custody  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  States,  or  of  an  order,  process,  or  decree  of  a 
court  or  judge  thereof;  or  is  in  custody  in  violation  of  the  Constitution 
or  of  a  law  or  treaty  of  the  United  States  ;  or,  being  a  subject  or  citizen 
of  a  foreign  state,  and  domiciled  therein,  is  in  custody  for  an  act  done 
or  omitted  under  any  alleged  right,  title,  authority,  privilege,  protec- 
tion, ■  >r  exemption  claimed  under  the  commission,  or  order,  or  sanction 
of  any  foreign  state,  or  under  color  thereof,  the  validity  and  effect 
whereof  depend  upon  the  law  of  nations;  or  unless  it  is  necessary  to 
bring  the  prisoner  into  couat  to  testify. 

24  Sept.,  1789,  c.  20,  s.  14,  v.  1,  p.  81;  2  Mar.,  1833,  c.  57,  s.  7,  v.  4,  p.  634;  5 
Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385;  29  Aug.,  1842,  c.257,  s.  1,  v.  5,  p.  .539. 
Ex  parte  Dorr,  3  How.,  103;  Ex  parte  Barues,  1  Spragne,  133:  Ex  parte 
Bridges,  2  Woods,  428. 

Sec.  754.  Application  for  writ  of  habeas  corpus  shall  be  made  to  the 
court,  or  justice,  or  judge  authorized  to  issue  the  satue,  bv  complaint  in 
writing,  signed  by  the  person  for  whose  relief  it  is  intended,  setting 
68 


CHAP.  I.]  PLACING    BOUNDARIES.  [§  22. 

forth  the  facts  concern  in. £;•  the  detention  of  the  i)art.v  )-estrained,  in 
wliose  cnstody  he  is  detained,  and  by  virtue  of  what  chiini  or  authority, 
if  known.  The  facts  set  forth  in  the  coini)hiint  shall  be  verified  by  the 
oath  of  the  person  making  the  application. 

.f")  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385. 

See  further  as  to  McLeod's  case,  infra,  $  350. 

XIX.   TERRITORIAL    BOUNDARIES    DETERMINED.    BY    POLITICAL   AND 
NOT  JUDICIAL  ACTION. 

§22. 

In  a  controversy  between  the  United  States  and  a  foreign  nation  as 
to  boundary,  the  courts  will  follow  the  decision  of  those  departments 
of  the  Government  to  which  the  assertion  of  its  interests  against  for- 
eign powers  is  confided,  i.  e.,  the  legislative  and  executive. 

Foster  v.  Neilson,  2  Peters,  253 ;  Garcia  v.  Lee,  12  id.,  511  ;  Willianis  v.  Sutfolk 
Ins.  Co.,  13  id.,  415 ;  U.  S.  v.  Eeynes,  9  Howard,  127. 

69 


CHAPTER  11. 

SOVEREIGNTY  OVER  WATER. 

I.  High  seas:  sovereignty  over,  ^26. 

II.  Territorial  waters:  privileges  of,  §27. 

III.  Bays,  §  28. 

IV.  Straits,  §  29. 
V.  Rivers,  §  30. 

VI.  Lakes  and  inland  seas,  §  31. 

VII.  Marginal  belt  of  sea,  §  32. 

VIII.  Ship  nationalized  by  flag,  §  33. 

IX.  Crimes  at  sea  subject  to  country  of  flag,  §  33a. 

X.  Ports  open  to  all  nations,  ^  34. 

XI.  Merchant  vessels  subject  to  police  law  of  port,  <\  35. 

XII.  Crimes  on  such  vessels,  how  far  subject  to  port  laws,  $  .35a. 

XIII.  Not  so  as  to  public  ships,  §  36. 

XIV.  Oppressive  port  exactions,  §  37. 

XV.    Exemptions  from  stress  of  weather:  vis  major,  or  inadvertence,  §  38. 

XVI.  Arming  merchant  vessels,  §  39. 

XVII.  Neutralized  waters,  §  40. 

I.  HIGH  SEAS,  SOVEREIGNTY  OVER. 
§  26. 

The  high  seas  belong  in  common  to  all  nations,  with  the  exception  of 
that  i)ortion  of  water  covered  by  a  ship  of  a  particular  nation;  which 
portion  of  water  is  considered  as  part  of  the  territory  of  the  nation  to 
which  the  ship  belongs. 

Infra,  ^  33. 

The  law  of  the  sea,  like  all  the  laws  of  nations,  rests  upon  the  com- 
mon consent  of  civilized  communities;  and  while  no  single  nation  can 
change  it,  it  can  be  changed  by  common  consent,  of  which  the  court 
will  take  judicial  notice. 

The  Scotia,  14  Wallace,  170. 

When  a  controversy  between  foreign  vessels  in  the  courts  of  the 
United  States  arises  under  the  common  law  of  nations,  the  court  below, 
having  admiralty  functions,  should   take  jurisdiction,   unless  special 
grounds  are  shown  why  it  should  not  do  so. 
The  Belgenland,  114  U.  S.,  35''^. 

70 


CHAP.  II.]  TERRITORIAL    WATERS.  [§  27. 

A  collisiou  ou  the  high  seas  between  vessels  of  different  nationalities 
is  prima  facie  a  proper  subject  of  inquiry  in  any  court  of  admiralty 
which  first  obtains  jurisdiction. 

lUd. 

II.  TEBBIIOBIAL  WATERS,  PRIVILEGES  OF. 

§  27. 

As  to  limits  of  territorial  waters  as  affected  by  necessity,  see  infra,  §  38. 
As  to  Russian  claim  of  territorial  waters,  see  infra,  $  32. 

The  admission  of  foreign  vessels  of  war  within  our  territorial  waters 
is  by  international  law  a  matter  of  courtesy,  and,  when  there  is  no 
treaty,  may  be  refused  by  the  Executive  on  due  cause. 

Infra,  §§  3156,  jf.  319. 

A  neutral  is  bound  not  to  permit  his  territorial  waters  to  be  the  base 
of  action  by  one  belligerent  against  another ;  and  he  is  responsible  for 
his  failure  to  perform  his  duty  in  this  respect  to  a  belligerent  who  may 
be  injured  thereby. 

Infra,  ^  399. 

A  neutral  who  sustains  injury  from  belligerent  action  in  his  territorial 
waters  may  claim  from  such  belligerent  compensation  for  such  injury. 

Infra,  ^  32,  227,  228,  398,  399. 

A  seizure  within  the  waters  of  the  United  Stated,  by  a  British  cruiser, 
of  a  Spanish  vessel  alleged  to  be  a  slaver,  is  an  invasion  of  the  sov- 
ereignty of  the  United  States. 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Vauglian,  Feb.  18,  1828;  MSS.  Notes  For.  Leg. 

An  attack  by  one  belligerent  cruiser  in  the  territorial  waters  of  a 
neutral  on  a'vessel  belonging  to  the  other  belligerent,  is  an  insult  for 
which  the  neutral  is  entitled  to  demand  redress  and  reparation. 

Infra,  ^  399. 

•'In  the  case  of  the  Anna  captured  by  a  British  cruiser  in  1805,  near 
the  mouth  of  the  Mississippi  and  within  the  jurisdiction  of  the  United 
States,  the  British  court  of  admiralty  not  only  restored  the  captured 
property,  but  fully  asserted  and  vindicated  the  sanctity  of  neutral  ter- 
ritory by  a  decree  of  costs  and  damages  against  the  captor.  If  a 
neutral  state  neglects  to  make  such  restitution,  and  to  enforce  the 
sanctity  of  its  territory,  but  tamely  submits  to  the  outrages  of  one  of 
the  belligerents,  it  forfeits  the  immunities  of  its  neutral  character  with 
respect  to  the  other,  and  may  be  treated  by  it  as  an  enemy.  Phillimore 
on  Int.  Law,  vol,  iii,  §§  155-157  ;  the  Vrow  Anua  Catharina,  5  Rob.,  15; 
the  Anna,  5  Rob.,  348;  Heffter,  Droit  International,  §§  14G-150;  Bello, 
Droit  luternacional,  pt.  ii,  cap.  vii,  §  C> ;  Riquelme  Derecho  Pub.  Int., 
lib.  i,  tit.  ii,  cap.  xvii." 

2  Halleck's  Int.  Law  (Baker's  ed.),  205;  astothe  Anna,  see  more  fully  i«/ra,§  399. 

71 


§  27]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

•' Diniiij^-  llic  war  of  ISlL'-lo  between  the  United  States  and  Great 
liritain,  the  United  States  frijjate  Essex  was  attacked  and  compelled 
to  surrender,  while  at  anchor,  dismasted,  in  Valparaiso,  by  the  British 
frigate  Phcebe  and  sloopof-war  Cherub.  The  sloop-ofwar  Levant,  a 
recent  prize  to  the  United  States  frigate  Constitution,  was  chased  into 
Port  Praya,  and  captured  while  at  anchor  there  by  vessels  from  the 
British  fleet.  The  United  States  privateer  General  Armstrong,  lying 
in  the  harbor  of  Fayal,  was  destroyed  by  vessels  from  the  British  tleet. 
The  demand  upon  Portugal,  by  the  United  States,  for  indemnihcation 
was  ultimately  left  to  the  arbitration  of  Louis  Napoleon,  then  Pjesi- 
dent  of  the  French  Eepublic.  He  recognized  the  attack  as  a  violation 
of  neutral  rights,  but  decided  against  indemnification,  on  the  ground 
that  the  privateer  did  not  demand  protection  from  the  Portuguese 
authorities  at  the  time,  but  resisted  by  battle  the  unjust  attack  of  the 
l^ritish  vessels,  instead  of  relying  upon  the  neutral  protection.  This 
decision  was  not  satisfactory  to  the  United  States,  as  they  did  not 
consider  the  fact  on  which  it  rested  as  established  in  proof.  The  ])rin- 
(•ij)le  of  the  decision  must  certainly  be  confined  to  cases  where  the 
Vessel  attacked  has  reason  to  believe  that  effectual  protection  can  be 
seasonably  afforded  by  the  neutral,  and  makes  a  fair  choice  to  take  the 
chances  of  a  combat  rather  than  to  appeal  to  neutral  protection.  Ex. 
Doc,  32d  Cong.,  Senate,  Xo.  24." 

Dana's  Wheatoa,  §  429,  note  208. 

For  attacks  in  1807  on  the  Chesapeake  by  the  Leopard  in  United  States  terri- 
torial waters,  see  infra,  $  3156. 
For  disquisition  on  territorial  waters,  see  11  Edinburg  Rev.  16;  (Oct.,  1807.) 

The  Chesapeake  was  a  United  States  merchant  steamer,  which  sailed 
on  December  5,  1863,  from  iN'ew  York  to  Portland,  carrying  mainly 
goods.  She  was  boarded,  when  starting,  by  six  men,  who  asked  to  be 
received  as  passengers.  When,  however,  they  had  left  the  shore,  these 
men,  under  the  command  of  one  of  their  number  named  Braine,  obtained 
control  of  the  vessel,  killed  one  of  the  officers,  wounded  two  others, 
seized  the  captain  and  forced  him,  with  a  part  of  his  crew,  in  a  boat  to 
reach  the  jwrt  of  Saint  John's,  Xew  Brunswick.  Having  become  masters 
of  the  ship,  those  engaged  in  the  revolt  landed  at  several  points  in 
Nova  Scotia,  gave  the  ship  the  name  of  The  Eetribution,  asserting  that 
it  was  a  Confederate  war  vessel,  disembarked  the  cargo,  and  took  in 
l)rovisions  and  coal.  This  conduct  exciting  attention,  the  local  authori- 
ties resisted  the  continuation  of  the  performances  of  the  Chesapeake  in 
this  line,  and  required  her  to  put  to  sea.  In  the  mean  time  the  owners 
of  the  cargo  complained  at  Washington  of  the  spoliation  of  which  they 
were  the  victims,  and  the  Government  of  the  United  States  called  on  the 
British  minister  to  require  the  authorities  of  Nova  Scotia  to  detain  the 
Chesapeake  when  she  should  next  come  into  port,  and  to  imprison  the 
parties  who  manned  her  until  extradition  proceedings  could  be  had 
•against  them  under  the  treaty  of  1842.  Cruisers  being  sent  out  by  the 
Xavy  Department  to  look  for  the  Chesapeake,  she  was  discovered  near 
Samboro,  a  Canadian  port,  with  a  signal  of  distress  flying,  deserted 
by  the  captors,  and  manned  by  two  British  subjects,  whom  the  captors 
had  employed  as  engineers,  and  by  some  of  the  original  crew.  Near 
72 


CHAP.  II.]  TEERITORIAL    WATERS.  [§27. 

her  was  discovered  a  small  sailing  vessel,  which  had  come  to  supply 
her  with  coal.  On  searching  the  latter  vessel  a  <iuantity  of  goods  from 
the  Chesapeake,  was  found  in  the  charge  of  one  of  the  captors  Wade, 
who  was  seized  and  placed  in  irons.  Captain  Clary,  of  the  United  States 
cruiser  Dacotah,  coming  into  port,  as  senior  officer,  took  the  Chesa- 
peake to  Halifax.  As  the  capture  was  made  in  British  waters  Captain 
Clary  offered  to  deliver  the  Chesapeake  and  the  three  prisoners  to  the 
British  authorities,  asking  that  the  Chesapeake  be  returned  to  her 
owners,  and  the  prisoners  held  for  extradition.  Mr.  Seward,  at  the 
same  time,  expressed  to  Lord  Lyons  the  regret  felt  by  the  Department 
that  British  territorial  waters  should  have  been  invaded,  ottering  to 
make  any  amends,  but  repeating  the  request  that  the  prisoiiers,  when 
surrendered  to  Great  Britain,  should  be  retained  to  await  extradition, 
and  that  the  vessel  should  be  surrendered;  or,  as  an  alternative,  that 
both  vessel  and  prisoners  should  be  brought  to  the  TJnited  States,  to 
be  delivered  to  the  British  Government  if  required,  subject  to  subse- 
quent extradition.  The  British  Government,  in  reply,  took  the  position 
that  the  seizure  of  the  Chesapeake  in  British  waters  was  an  interna- 
tional wrong  which  should  be  repaired  by  the  surrender  of  the  vessel  to 
Great  Britain  and  by  setting  the  prisoners  free.  This  plan  was  consum- 
mated by  the  delivery  of  the  Chesapeake  to  the  British  authorities  at 
Halifax  for  adjudication,  and  the  handing  over  the  prisoners  to  the 
sheriff  at  that  place,  who  set  them  at  large.  Once  free  they  managed 
to  escape  before  warrants  for  arrest  under  extradition  process  could  be 
served  on  them.  The  advocate-general,  as  Crown  officer,  instituted 
proceedings  against  the  Chesapeake,  as  having  been  piratically  seized 
on  the  high  seas,  and  in  these  proceedings  the  owners  of  vessel  and 
cargo  appeared  as  claimants,  the  United  States  not  appearing  as  a 
party.  Judge  Stewart,  who  presided  in  the  vice-admiralty  court,  held 
that  the  seizure  by  Braiue  and  his  confederates,  as  they  had  no  bellig 
erent  commission,  was  piratical,  and  that  hence  restitution  was  to  be 
ordered  to  the  owners.  He  went  on  to  say  that  even  if  Braine  and  his 
confederates  had  belligerent  authority,  their  course  after  the  seizure 
deprived  them  of  the  right  such  authority  would  give,  since  they  brought 
the  vessel  into  a  neutral  port,  without  judicial  condemnation,  and  there 
sold  the  cargo,  comprising  neutral  as  well  as  enemy's  property,  surrepti- 
tiously using  false  pretenses  to  obtain  supplies,  and  then,  instead  of 
contesting  their  rights  as  belligerents,  fled  the  jurisdiction. 

See  summary  in  Calvo,  3d  ed.,  3  vol.,  481 ;  and  see  also  infra,  %  315. 

On  this  question  Mr.  Dana  thus  speaks : 

"  The  whole  case  is  resolved  into  a  few  elements :  Whether  Braine 
and  his  party  were  pirates  jure  gentium^  or  only  criminals  by  the  mu- 
nicipal law  of  the  United  States,  the  naval  officers  of  the  United 
States,  as  belligerents,  had  no  right  to  arrest  them  or  the  vessel  within 
British  territorial  jurisdiction.  Disclaimer  and  apology  by  the  United 
States  became   necessary,   and   were   freely  tendered.      The  United 

73 


§  27.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

States  regarded  the  case  as  one  orf'  pure  piracy,  and  the  act  of  its  offi- 
cers in  malcino-  the  arrest  as  the  result  of  a  zealous  desire  to  perform  a 
duty  to  mankind,  and  accompanied  with  no  willful  or  unnecessary 
force  or  rudeness ;  and,  as  the  port  was  a  small  one,  with  no  local  po- 
lice force,  the  retaking  possession  of  persons  and  property  piratically 
seized,  under  such  circumstances,  for  the  sole  purpose  of  delivering 
them  at  once  into  competent  neutral  custody,  constituted  rather  a 
formal  than  a  serious  violation  of  the  law  of  nations,  for  which  resto- 
ration of  the  vessel  and  prisoners  to  British  authority,  disclaimer, 
apology,  and  a  censure  of  the  officers  was  an  adequate  satisfaction 
and  security.  Great  Britain  acquiesced  in  this  view.  No  competent 
claim  of  belligerent  authority  for  the  seizure  by  Braiue  and  his  party 
was  ever  made,  either  in  the  courts  or  to  the  political  authorities  of 
Great  Britain,  so  the  legal  and  political  character  of  the  case  was  one 
of  piracy,  with  a  notion  that  a  color  of  belligerent  authority  might 
possibly  have  existed,  which  was  never  produced.  The  restitution  of 
vessel  and  cargo  to  the  owners,  by  rule  of  the  vice-admiralty  court,  on 
motion  of  the  crown  officer,  ended  the  question  as  to  the  vessel ;  and 
the  escape  of  the  men,  between  their  discharge  and  rearrest  closed  the 
question  as  to  the  extradition.  U.  S.  Dip.  Corr.  1864,  Part  I,  pp.  46,  72, 
121,  196,  431 ;  Part  II,  pp.  401-407,  468,  474,  482,  483,  488,  490,  oil, 
538,  562,  650.  Papers  presented  to  the  House  of  Commons  in  reply 
to  the  address  of  March  7,  1864,  North  America,  No.  9." 

Dana's  Wheaton,  §  428,  note  207. 

The  seizure  of  the  Confederate  cruiser  Florida,  by  the  Federal  cruiser 
Wacliusett,  in  the  port  of  Bahia,  Brazil,  in  October,  1864,  was  con- 
ceded by  the  United  States  Government  to  be  an  invasion  of  Brazil- 
ian territorial  waters.  The  act  was  disavowed  by  the  United  States^ 
and  in  a  note  of  December  26,  1864,  to  Mr.  Barbosa  da  Silva,  Brazil- 
ian minister  at  Washington,  Mr.  Seward  announced  the  proposed  trial 
by  court-martial  of  the  captain  of  the  Wachusett,  the  dismissal  of  the 
United  States  consul  at  Bahia,  who  advised  the  attack,  the  release  of 
the  parties  on  the  Florida,  and  a  salute  to  the  Brazilian  flag.  Mr. 
Seward  proceeded  to  mention  that  the  Florida,  while  at  anchor  in 
Hampton  Eoads,  had,  by  an  unavoidable  casualty,  foundered.  To 
fulfill  the  engagement  of  saluting  the  Brazilian  flag,  the  United  States 
(iovernment,  in  1866,  sent  to  Bahia  a  United  States  vessel  of  war  for 
the  announced  purpose  of  delivering  a  solemn  salute  to  the  Brazilian 
flag  on  the  spot  where  Brazilian  neutrality  had  been  invaded. 

See  Dana's  Wboaton,  note,  209;  Calvo,  8cl  ed.,  3  vol.,  487,  -where  the  case  is 
given  in  detail.     See  also  infra,  $  399. 

The  papers  connected  with  the  seizure  of  the  schooner  Greyhound,  in  Boston 
Harbor,  in  Angnst,  1793,  by  orders  of  the  French  vice-consul  in  Boston,  are 
given  in  1  Am.  State  Papers;  For.  Rel.,  178  ff. 

The  seizure  by  a  ship-of-war  of  the  United  States  of  a  vessel  within 
the  jurisdiction  of  a  foreign  government,  for  an  infringement  of  our 
revenue  or  navigation  laws,  is  a  violation  of  the  territorial  authority  of 
such  government. 

4  Op..  285,  Nelson,  1843. 
74 


CHAP.  II.]  BAYS.  [§28. 

III.  BAFS. 

§28. 

The  whole  of  the  waters  within  the  capes  of  the  Delaware  Bay  is 
neutral  territory  when  the  United  States  is  neutral.  This  neutrality 
depends  not  "on  any  of  the  various  distances  claimed"  on  the  sea  "by 
ditterent  nations  possessing  the  neighboring  shore,"  but  upon  the  fact 
that  the  United  States  are  the  proprietors  of  the  lands  on  both  sides  of 
the  Delaware,  from  its  head  to  its  entrance  into  the  sea.  But  the  law  of 
nations  and  the  treaty  of  Paris  of  1783  may  justify  the  United  States 
in  attaching  to  their  coasts  "an  extent  into  the  sea  beyond  the  reach  of 
cannon  shot." 

1  Op.,  32,  Eandolph,  1793;  1  Am.  St.  Pap.  (For.  Eel.),  80.  (See  Mr.  Jefferson, 
Sec.  of  State,  to  Mr.  Morris,  Aug.  16,  1793.  MSS.  lust.  Ministers ;  1  Am. 
St.  Paps.  (For.  Eel.),  167. 

"DeMware  Bay  was  declared  in  1793  to  belong  exclusively  to  the 
United  States.  When,  however,  the  headlands  are  very  remote,  there 
is  more  doubt  in  regard  to  the  claim  of  exclusive  control  over  them; 
and,  for  the  most  part,  such  claim  has  not  been  made.  Chancellor 
Kent  (I,  30)  inclines  to  claim  for  the  United  States  the  dominion  over 
a  very  wide  extent  of  the  adjacent  ocean.  'Considering,'  says  he,  Hhe 
great  extent  of  the  line  of  the  American  coasts,  we  have  a  right  to 
claim,  tor  fiscal  and  defensive  regulations,  a  liberal  extension  of  mari- 
time jurisdiction;  and  it  would  not  be  unreasonable,  as  1  apprehend, 
to  assume  for  domestic  purposes  connected  with  our  safety  and  wel- 
fare the  control  of  waters  on  our  coasts,  though  included  within  lines 
stretching  from  quite  distant  headlands — as,  for  instance,  froui  Cape 
Ann  to  Cape  Cod,  and  from  Nantucket  to  Montauk  Point,  and  from 
that  point  to  the  capes  of  the  Delaware,  and  from  the  south  cope  of 
Florida  to  the  Mississippi.  In  1793  our  Government  thought- they  were 
entitled,  in  reason,  to  as  broad  a  margin  of  protected  navigation  as  any 
nation  whatever,  though  at  that  time  they  did  not  positively  insist  be- 
yond the  distance  of  a  marine  league  from  the  sea-shores;  and  in  180G 
our  Government  thought  it  would  not  be  unreasonable,  considering  the 
extent  of  the  United  States,  the  shoalness  of  their  coast,  and  the  natu- 
ral indication  furnished  by  the  well-defined  path  of  the  Gulf  Stream, 
to  expect  an  immunity  from  belligerent  warfare  for  the  space  between 
that  limit  and  the  American  shore.'  But  such  broad  claims  have  not, 
it  is  believed,  been  much  urged,  and  they  are  out  of  character  for  a 
nation  that  has  ever  asserted  the  freedom  of  doubtful  waters,  as  well 
as  contrary  to  the  spirit  of  the  more  recent  times." 

Woolsey's  Int.  Law,  ^  56.     (See  comments  in  Wbart.  Com.  Am.  Law,  ij  192 

and  discussions  in  procedure  of  Halifax  Commission,  Vol.  I,  145  Jf.) 
As  to  marine  belt  see  injra,  $  32. 

"In  defining  the  distance  protected  against  belligerent  proceedings 
it  would  not,  perhaps,  be  unreasonable,  considering  the  extent  of  the 
United  States,  the  shoalness  of  their  coast,  and  the  natural  indication 
furnished  by  the  well-defined  path  of  the  Gulf  Stream,  to  expect  an 
immunity  for  the  space  between  that  limit  and  the  American   shore. 

75 


§  29.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

But  al  least  i(  ina.v  bo  insisted  that  the  extent  of  the  neutral  immunity 
sliouid  (U)nvspoii<l  with  the  claims  maintained  by  Great  Britain  around 
her  own  territory." 

Mr.  Madison,  Sec.  of  State,  to  Messrs.  Monroe  and  Pinkney,  May  17, 1806.     MSS. 
lust.  Ministers. 

It  cannot  be  asserted  as  a  general  rule  that  nations  have  an  exclusive 
right  of  fishery  over  all  adjacent  waters  to  a  distance  of  three  marine 
miles  beyond  an  imaginary  line  drawn  from  headland  to  headland.  This 
doctrine  of  headlands  is  new,  and  has  received  a  proper  limit  in  the  con- 
vention between  France  and  Great  Britain  of  the  2d  of  August,  1839,  in 
which  "  It  is  equally  agreed  that  the  distance  of  three  miles  fixed  as  the 
general  limit  for  the  exclusive  right  of  fishery  upon  the  coasts  of  the 
two  countries  shall,  with  respect  to  bays,  the  mouths  of  which  do  not 
exceed  ten  miles  in  width,  be  measured  from  a  straight  line  drawn  from 
headland  to  headland." 

Umpire,  London  C,  1853,  212;  S.  P.,  214.     Cited  1  Halifax  award,  1.52.     See 
infra,  $  32. 

Where  two  nations  are  possessed  of  territory  on  opposite  sides  of  a  bay 
or  navigable  river,  the  sovereignty  of  each  presumptively  extends  to  the 
middle  of  the  water  from  any  part  of  their  respective  shores. 
5  Op.,  412,  Crittenden,  1851. 

Where  one  nation  first  takes  possession  of  the  whole  of  the  bay  or 
navigable  river,  and  exercises  sovereignty  thereon,  the  neighboring  peo- 
ple shall  nevertheless  be  "  lords  of  their  particular  ports,  and  so  much 
of  the  sea  or  navigable  river  as  the  convenient  access  to  the  shore  re- 
quires." 

Ihid. 
On  May  14,  1870,  the  "headland"  doctrine  having  been  reasserted 
by  Mr.  Peter  Mitchell,  provincial  minister  of  marine  and  fisheries,  Lord 
Granville,  British  foreign  secretary,  on  June  6, 1870,  telegraphed  to  the 
governor-general  as  follows:  "  Her  Majesty's  Government  hopes  that 
the  United  States  fishermen  will  not  be,  for  the  present,  prevented  from 
fishing,  except  within  three  miles  of  land,  or  in  bays  which  are  less 
than  six  miles  broad  at  the  mouth." 

1  Halifax  Comni.,  1.%.     Infra,  ^  32,  303. 

IV.  STRAITS. 

§29. 

"Negotiations  are  pending  with  Denmark  to  discontinue  the  practice 
of  levying  tolls  on  our  vessels  and  their  cargoes  passing  through  the 
soun<l.  1  do  not  doubt  that  we  can  claim  exemption  therefrom,  as  a 
matter  of  right.  It  is  admitted  on  all  hands  that  this  exaction  is  sanc- 
tioned, not  by  the  general  principles  of  the  law  of  nations,  but  only  by 
special  conventions,  which  most  of  the  commercial  nations  have  entered 
76 


CHAP.  II.]  STRAITS.  [§  29. 

into  with  Denmark.  The  fifth  article  of  our  treaty  of  1826  with  Den- 
mark provides  that  there  shall  not  be  paid,  on  the  vessels  of  the  United 
States  and  their  cargoes  when  i)assing  through  the  sound,  higher  duties 
than  those  of  the  most  favored  nations.  This  may  be  regarded  as  an 
implied  agreement  to  submit  to  the  toll  during  the  continuance  of  the 
treaty,  and,  consequently,  may  embarrass  the  assertion  of  our  right  to 
be  released  therefrom.  There  are  also  other  provisions  in  the  treaty 
which  ought  to  be  modified.  It  was  to  remain  in  force  for  ten  years,  and 
until  one  year  after  either  party  should  give  notice  to  the  other  of  in- 
tention to  terminate  it.  I  deem  it  expedient  that  the  contemplated  no- 
tice should  be  given  to  the  Government  of  Denmark." 
President  Pierce's  second  annual  message,  1854. 

"  I  remain  of  the  opinion  that  the  United  States  ought  not  to  submit 
to  the  payment  of  the  sound  dues,  not  so  much  because  of  their  amount, 
which  is  a  secondary  matter,  but  because  it  is  in  effect  the  recognition 
of  the  right  of  Denmark  to  treat  one  of  the  great  maritime  highways  of 
nations  as  a  close  sea,  and  prevent  the  navigation  of  it  as  a  privilege, 
for  which  tribute  may  be  Imposed  upon  those  who  have  occasion  to 
use  it. 

''  This  Government,  on  a  former  occasion  not  unlike  the  present,  sig- 
nalized its  determination  to  maintain  the  freedom  of  the  seas  and  of  the 
great  natural  channels  of  navigation.  The  Barbary  States  had  for  a 
long  time  coerced  the  payment  of  tribute  from  all  nations  whose  ships 
frequented  the  Mediterranean.  To  the  last  demand  of  such  payment 
made  by  them  the  United  States,  although  suffering  less  by  their  dep- 
redations than  many  other  nations,  returned  the  explicit  answer  that 
we  preferred  war  to  tribute,  and  thus  opened  the  way  to  the  relief  of 
the  commerce  of  the  world  from  an  ignominious  tax,  so  long  submitted 
to  by  the  more  powerful  nations  of  Europe. 

"If  the  manner  of  payment  of  the  sound  dues  differ  from  that  of  the 
tribute  formerly  conceded  to  the  Barbary  States,  still  their  exaction  by 
Denmark  has  no  better  foundation  in  right.  Each  was,  in  its  origin, 
nothing  but  a  tax  on  a  common  natural  right,  extorted  by  those  who 
were  at  that  time  able  to  obstruct  the  free  and  secure  enjoyment  of  it, 
but  who  no  longer  possess  that  power. 

"Denmark,  while  resisting  our  assertion  of  the  freedom  of  the  Baltic 
Sound  and  belts,  has  indicated  a  readiness  to  make  some  new  arrange- 
ment on  the  subject,  and  has  invited  the  Governments  interested,  in 
eluding  the  United  States,  to  be  represented  in  a  convention  to  assem- 
ble for  the  purpose  of  receiving  and  considering  a  proposition  which  she 
intends  to  submit  for  the  capitalization  of  the  sound  dues,  and  the  dis- 
tribution of  the  sum  to  be  paid  as  commutation  among  the  Governments 
according  to  the  respective  proportion  of  their  maritime  commerce  to 
and  from  the  Baltic.  I  have  declined,  in  the  behalf  of  the  United 
States,  to  accept  this  invitation,  for  the  most  cogent  reasons.  One  is 
that  Denmark  does  not  offer  to  submit  to  the  convention  the  question  of 

77 


§  29.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II, 

her  rijjht  to  levy  the  sound  dues.  The  second  is,  that  if  the  convention 
were  allowed  to  take  cognizance  of  that  particular  question,  still  it 
would  not  be  competent  to  deal  with  the  great  international  principle 
involved,  which  affects  the  right  in  other  cases  of  navigation  and  com- 
mercial freedom  as  well  as  that  of  access  to  the  Baltic.  Above  all,  by 
the  express  terms  of  the  proposition  it  is  contemplated  that  the  consid- 
eration of  the  sound  dues  shall  be  commingled  with  and  made  subordi- 
nate to  a  matter  wholly  extraneous — the  balance  of  power  among  the 
Governments  of  Europe. 

"While,  however,  rejecting  this  proposition,  and  insisting  on  the  right 
of  free  transit  into  and  from  the  Baltic,  I  have  expressed  to  Denmark 
a  willingness,  on  the  part  of  the  United  States,  to  share  liberally  with 
other  ])Owers  in  compensating  her  for  any  advantages  which  (jommerce 
shall  hereafter  derive  from  expenditures  made  by  her  for  the  improve- 
ment and  safety  of  the  navigation  of  the  sound  or  belts.'' 
President  Pierce's  third  annual  message,  1855. 

The  imposition  by  Denmark  of  sound  dues  on  shipping  of  the  United 
States  is  regarded  by  the  Government  of  the  United  States  as  incon- 
sistent with  just  principles  of  international  law. 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Flenniken,  Oct.  14,  1848.  MSS.  Instruct.; 
Denmark.  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Bedlnger,  July  18,  18.53 ;  March 
12,  18,55  ;  Nov.  3,  1855 ;  Feb.  19,  1856  ;  May  5,  18.5G.     Ibid. 

"By  a  convention,  of  April  11,  1857,  between  the  United  States  and 
Denmark,  the  navigation  of  the  sound  and  belts  is  declared  free  to 
American  vessels;  and  Denmark  stipulates  that  these  passages  shall 
be  lighted  and  buoyed  as  heretofore,  and  to  make  such 'improvements 
in  them  as  circumstances  may  require,  without  any  charges  to  American 
vessels  and  their  cargoes,  and  to  maintain  the  present  establishment  of 
pilots,  it  being  optional  for  American  masters  to  employ  them  at  reason- 
able rates  fixed  by  the  Danish  Government  or  to  navigate  their  own 
vessels.  In  consideration  of  these  stii)ulations  the  United  States  agreed 
to  pay  to  Denmark  717,829  rix-dollars,  or  $393,011  in  the  currency  of 
the  United  States.  Any  other  privileges  granted  by  Denmark  to  any 
other  nation  at  the  sound  and  belts,  or  on  her  coasts  and  in  her  harbors, 
with  reference  to  the  transit  by  land,  through  Danish  territory,  of  their 
merchnndise,  shall  be  extended  to  and  enjoyed  by  citizens  of  the  United 
States,  their  vessels  and  property.  The  convention  of  April  26,  1826, 
to  become  again  binding,  except  as  regards  the  article  referring  to  the 
sound  <lues.     United  States  Statutes  at  Large,  vol.  xi,  p.  719." 

Lawrence's  Wheaton,  ed.  1863,  p.  335. 

See   further  correspondence  attached    to   President   Pierce's   messages   above 

quoted;  House  Ex.  Doc.  No.  108,  33d  Cong.,  Ist  sess.;  2  Benton's  Thirty 

Years  in  Senate,  362. 
The  subject  <if  sound  dues  is  further  discussed  in  Woolsey's  Int.  Law,  $  .57,  see 

alsct  North  AuiericiD  Review  for  Jan.  1857  ;  2  Fiore  Droit  Int.,  2d  ed.  (trans. 

by  Autoine,  1885),  ^  724;  3  Calvo  Droit  Int.,  3d  ed.,  342. 
The  correspondence  with  Denmark   (1841-1854)  relative  to  sound  dues  will  be 

found  in  British  aud  Foreign  State  Papers,  1854-'55,  vol.  45,  807. 
78 


CHAP.  II.]  STEAITS.  [§  29. 

''  This  Government  is  not  disposed  to  prematurely  raise  any  question 
to  disturb  the  existing  control  which  Turkey  claims  over  the  straits 
leading  into  the  Euxiue.  It  has  observed  the  acquiescence  of  other 
powers  whose  greater  propinquity  would  suggest  more  intimate  interests 
in  the  usage  whereby  the  Porte  claims  the  right  to  exclude  the  national 
vessels  of  other  powers  from  the  passage  of  those  straits. 

"  But  while  this  Government  does  not  deny  the  existence  of  the  usage, 
and  has  had  no  occasion  to  question  the  propriety  of  its  observance, 
the  President  deems  it  important  to  avoid  recognizing  it  as  a  right 
under  the  law  of  nations. 

"  The  position  of  Turkey  with  reference  to  the  Euxine  may  be  com- 
pared to  that  of  Denmark  with  reference  to  the  Baltic,  with  the  dif- 
ference that  the  former  is  a  sovereign  over  the  %oil  on  both  sides  of 
the  straits,  while  Sweden  owns  the  territory  on  the  east  of  the  sound 
leading  to  the  Baltic. 

"  Commercial  nations  from  the  earliest  times  until  recently  submitted 
to  the  exactions  of  Denmark  of  what  were  called  the  sound  dues,  which 
were  ultimately  abolished  by  the  payment  of  a  gross  sum  by  each  coun 
trj-,  proportionate  to  its  tonnage,  in  the  habit  of  passing  the  sound. 

"  The  legality  of  the  tax  when  it  was  levied  was,  at  least,  questionable, 
and  probably  was  acquiesced  in  from  its  antiquity  merely,  though,  per- 
haps, in  part  from  a  regard  to  the  comparative  w^eakness  of  Denmark 
to  resist  its  collection  by  the  commercial  world  at  large,  or  by  the  more 
powerful  nations  singly. 

"  We  are  not  aware  that  Denmark  claimed  the  right  to  exclude  foreign 
vessels  of  war  from  the  Baltic  merely  because  in  proceeding  thither 
they  must  necessarily  pass  within  cannon-shot  of  her  shores.  If  this 
right  has  been  claimed  by  Turkey  in  respect  to  the  Black  Sea,  it  must 
have  originated  at  a  time  when  she  was  positively  and  comparatively 
in  a  much  more  advantageous  position  to  enforce  it  than  she  now  is. 
The  Black  Sea,  like  the  Baltic,  is  a  vast  expanse  of  waters,  which  wash 
the  shores  not  alone  of  Turkish  territory,  but  those  of  another  great 
power  who  may,  in  times  of  peace  at  least,  expect  visits  from  men-of- 
war  of  friendly  states.  It  seems  unfair  that  any  such  claim  as  that  of 
Turkey  should  be  set  up  as  a  bar  to  such  an  intercourse,  or  that  the 
privilege  should  in  any  way  be  subject  to  her  sufferance. 

"  There  is  no  practical  question  making  it  necessary  at  present  to 
discuss  the  subject,  but  should  occasion  arise  when  you  are  called  upon 
to  refer  to  it,  you  will  bear  in  mind  the  distinction  taken  above,  and  be 
cautious  to  go  no  further  than  to  recognize  the  exclusion  of  the  vessels 
as  a  usage." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  MacVeagb,  Maj^  5, 1871.     MSS.  Inst.,  Turkey ;  For 
Rel.,  1871.    See  2  Fiore  Droit  int.  (trans,  in  French  by  Antoine,  1885),  §  748. 

"  The  abstract  right  of  the  Turkish  Government  to  obstruct  the 
navigation  of  the  Dardanelles  even  to  vessels  of  war  in  time  of  peace 
is  a  serious  question.    The  right,  however,  has  for  a  long  time  been 

79 


§  30.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

claimed,  and  has  been  sanctioned  by  treaties  between  Turkey  and  cer- 
tain European  states.  A  proper  occasion  may  arise  for  us  to  dispute 
the  aj)plicability  of  the  chiim  to  United  States  menof-war.  Meanwhile 
it  is  deemed  expedient  to  acquiesce  in  the  exclusion." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Boker,  Jan.  3,  1873.     MSS.  lust.,  Turkey. 

"The  United  States  are  not  a  party  to  the  convention  which  professes 
to  exclude  vessels  of  war  from  the  Dardanelles ;  and  while  it  is  disposed 
to  respect  this  traditional  sensibility  of  the  Porte  as  to  that  passage, 
the  shot  which  it  is  supposed  may  have  been  intended  for  a  national 
vessel  of  this  Government  might,  if  it  had  been  directed  according  to 
the  supposed  intention,  have  precipitated  a  discussion  if  not  a  serious 
complication."  ^ 

Mr..Fish,  Sec.  of  State,  to  Mr.  Boker,  Jan.  2o,  1878 ;  MSS.  lust.,  Turkey. 

The  Government  of  the  United  States  will  not  tolerate  exclusive 
chiims  by  any  nation  whatsoever  to  the  Straits  of  Magellan,  and  will 
hold  responsible  any  Government  that  undertakes,  no  matter  on  what 
pretext,  to  lay  any  impost  or  check  on  United  States  commerce  through 
those  straits. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Osboru,  Jan.  18,  1879.     MSS.  Inst.,  Chili. 

While  a  natural  thoroughfare,  although  wholly  within  the  dominion 
of  a  Government,  may  be  passed  by  commercial  ships,  of  right,  yet  the 
nation  which  constructs  an  artificial  channel  may  annex  such  conditions 

to  its  use  as  it  pleases. 

The  Avon,  18  Int.  Rev.Rec,  165. 

As  to  neutralized  waters  see  infra,  §  40. 

V.  RIVERS. 

§   30. 

The  message  of  President  J.  Q.  Adams,  on  January  25,  1828,  on  the 
navigation  of  the  Saint  Lawrence,  with  the  accompanying  papers,  is 
given  in  House  Doc.  Xo.  404,  Twentieth  Congress,  first'session;  6  Am. 
State  Papers  (For.  Rel.),  757.     Among  these  papers  are  the  following: 

Mr.  Knsh,  minister  at  London,  to  Mr.  Adams,  Secretary  of  State, 
August  12,  1824:  Mr.  Clay,  Secretary  of  State,  to  Mr.  Gallatin,  minister 
at  London,  June  19,  lS2(i,  August  8,  1820;  iMr.  Gallatin  to  Mr.  Clav, 
Sei)tember  21,  ]829,  October  1,  1827. 

The  position  taken  by  Mr.  Clay,  in  his  instructions  to  Mr.  Gallatin,  of 
.June  19,  1820,  was  that  the  United  States  claimed  the  right  of  fi  o 
navigation  of  the  Saint  Lawrence  as  a  strait  dividing  two  sovereign- 
ties. The  British  Government  took  the  position  that  while  not  conceding 
the  claim  as  a  matter  of  right,  they  would  be  willing  to  negotiate  in 
respect  to  it  as  a  matter  of  convenience.  The  argument  on  the  side 
of  the  United  States  is  given  in  the  American  paper  entitled  the 
p:ighteenth  Protocol;  that  on  the  side  of  Great  Britain  in  the  British 
piiper  entitled  the  Twenty-fourth  l*ioto(H)].  (See  also  Ex.  Doc.  l^o,  43, 
Twentieth  Congress,  first  session.) 
80 


CHAP.  II.]  RIVERS.  [§  30. 

By  the  reciprocity  treaty  of  June  5, 1854,  "  tbe  citizens  and  inhabitants 
of  the  United  States  shall  have  the  power  to  navigate  the  river  Saint 
Lawrence  and  the  canals  in  Canada  used  as  the  means  of  communicating 
between  the  great  hikes  and  the  Atlantic  Ocean,  with  tlieir  vessels, 
boats,  and  crafts  as  fully  and  freely  as  the  subjects  of  Her  Britannic 
Majesty,  subject  only  to  the  same  tolls  and  other  assessments  as  now 
are  or  may  hereafter  bfe  exacted  of  Her  Majesty's  said  subjects;  it  being 
understood,  however,  that  the  British  Government  retains  the  right  of 
suspending  this  privilege  on  giving  due  notice  thereof  to  the  Government 
of  the  United  States.  It  is  further  agreed  that  if  at  any  time  the  British 
Government  should  exercise  the  said  reserved  right,  the  Government 
of  the  United  States  shall  have  tbe  right  of  suspending,  if  it  think  fit, 
the  operations  of  Article  III  of  tbe  present  treaty,  iu  so  far  as  the 
province  of  Canada  is  affected  thereby,  for  so  long  as  the  suspension  of 
the  free  navigation  of  the  river  Saint  Lawrence  or  the  canals  may  con- 
tinue. It  is  further  agreed  that  British  subjects  shall  have  the  right 
freely  to  navigate  Lake  Michigan  with  their  vessels,  boats,  and  crafts, 
so  long  as  the  privilege  of  navigating  the  river  Saint  Lawrence,  secured 
to  American  citizens  by  the  above  clause  of  the  present  article  shall 
continue;  and  the  Government  of  the  United  States  further  engages  to 
urge  upon  the  State  governments  to  secure  to  the  subjects  of  Her 
Britannic  Majesty  the  use  of  the  several  State  canals  on  terms  of  equality 
with  the  inhabitants  of  the  United  States.  And  it  is  further  agreed 
that  no  export  duty,  or  other  duty,  shall  be  levied  on  lumber  or  timber 
of  any  kind  cut  on  that  portion  of  the  American  territory  in  tbe  State  of 
Maine  watered  by  tbe  river  Saint  John  and  its  tributaries  and  floated 
down  that  river  to  the  sea  when  the  same  is  shipi)ed  to  the  United 
States  from  the  pi'ovincc  of  New  Brunswick," 

This  treaty  was  terminated  March  17,  1866,  under  resolution  of  Con- 
gress of  Januarj^  18,  1865. 

"A  like  unfriendly  disposition  has  been  manifested  on  the  part  of 
Canada  in  the  maintenance  of  a  claim  of  right  to  exclude  the  citizens 
of  tbe  United  States  from  the  navigation  of  the  Saint  Lawrence.  This 
river  constitutes  a  natural  outlet  to  tbe  ocean  for  eight  States,  with  an 
aggregate  population  of  about  17,600,000  inhabitants,  and  with  an  ag- 
gregate tonnage  of  661,367  tons  upon  the  waters  which  discharge  into 
it.  The  foreign  conjmerce  of  our  ])orts  on  these  waters  is  open  to 
British  competition,  and  the  major  part  of  it  is  done  iu  British  bottoms. 

"  If  tbe  American  seamen  be  excluded  from  this  natural  avenue  to 
the  ocean,  the  monopoly  of  the  direct  commerce  of  the  lake  ports  with 
the  Atlantic  would  be  in  foreign  hands;  their  vessels  on  transatlantic 
voyages  having  an  access  to  our  lake  ports  which  would  be  denied  to 
American  vessels  on  similar  voyages.  To  state  such  a  proposition  is 
to  refute  its  justice. 

"During  the  administration  of  Mr,  John  Quincy  Adams,  Mr.  Clay 
S.  Mis.  16L>— VOL.  I 6  '81 


§  30.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

un;ms\vei;il»ly  demonstrated  the  natural  ri^ht  of  the  citizens  of  the 
United  States  to  the  navigation  of  this  river,  claiming  that  the  act  of 
tli(^  congress  of  Vienna,  in  opening  the  Rhine  and  other  rivers  to  all 
nations,  showed  the  judgment  of  European  jurists  and  statesmen  that 
the  inhabitants  of  a  country  through  which  a  navigable  river  passes 
have  a  natural  right  to  enjoy  the  navigation  of  that  river  to  and  into 
the  sea,  even  though  passing  through  the  territoHes  of  another  power. 
This  right  does  not  exclude  the  coequal  right  of  the  sovereign  possess- 
ing the  territory  through  which  the  river  debouches  into  the  sea  to 
make  such  regulations  relative  to  the  police  of  the  navigation  as  may 
be  reasonably  necessary;  but  those  regulations  should  be  framed  in  a 
liberal  si)irit  of  comity,  and  should  not  impose  needless  burdens  upon 
the  commerce  which  has  the  right  of  transit.  It  has  been  found  in 
practice  more  advantageous  to  arrange  these  regulations  by  mutual 
agreement.  The  United  States  are  ready  to  make  any  reasonable  ar- 
rangement, as  to  the  j^olice  of  the  Saint  Lawrence,  which  may  be  sug- 
gested by  Great  Britain. 

"  If  the  claim  made  by  Mr.  Clay  was  just  when  the  population  of 
States  bordering  on  the  shores  of  the  lakes  was  only  3,400,000,  it  now 
derives  greater  force  and  equity  from  the  increased  population,  wealth 
production,  and  tonnage  of  the  States  on  the  Canadian  frontier.  Since 
Mr.  Clay  advanced  his  argument  in  behalf  of  our  right  the  princii)le  for 
which  he  contended  has  been  frequently,  and  by  various  nations,  recog- 
nized by  law  or  by  treaty,  and  has  been  extended  to  several  other  great 
rivers.  By  the  treaty  concluded  at  Mayence,  in  1S31,  the  Rhine  was 
declared  free  from  the  point  where  it  is  first  navigable  into  the  sea. 
By  the  convention  between  Spain  and  Portugal,  concluded  in  1835,  the 
navigation  of  the  Douro,  throughout  its  whole  extent,  was  made  free  for 
the  subjects  of  both  crowns.  In  1853  the  Argentine  Confederation  by 
treaty  threw  open  the  free  navigation  of  the  Parana  and  the  Uruguay 
to  the  merchant  vessels  of  all  nations.  In  185(5  the  Crimean  war  was 
closed  by  a  treaty  which  provided  for  the  free  navigation  of  the  Danube. 
In  1858  Bolivia,  by  treaty,  declared  that  it  regarded  the  rivers  Amazon 
and  La  Plata,  in  accordance  with  fixed  principles  of  national  law,  as 
highways  or  channels,  opened  by  nature  for  the  commerce  of  all  nations. 
In  1859  the  Paraguay  was  made  free  by  treaty,  and  in  December,  1866, 
the  Emperor  of  Brazil,  by  imperial  decree,  declared  the  Amazon  to  be 
open,  to  the  frontier  of  Brazil,  to  the  merchant  ships  of  all  nations. 
The  greatest  living  British  authority  on  this  subject,  while  asserting 
the  abstract  right  of  the  British  claim,  says :  '  It  seems  difficult  to  deny 
that  Great  Britain  may  ground  her  refusal  upon  strict  law,  but  it  is 
equally  difficult  to  deny,  first,  that  in  so  doing  she  exercises  harshly  an 
extreme  and  hard  law  ;  secondly,  that  her  conduct  with  respect  to  the 
navigation  of  the  Saint  Lawrence  is  in  glaring  and  discreditable  incon- 
sistency with  her  conduct  with  respect  to  the  navigation  of  the  Missis- 
sippi. On  the  ground  that  she  possessed  a  small  domain,  in  which  the 
82 


CHAP.  II.]  RIVERS.  [§  30. 

Mississippi  took  its  rise,  she  insisted  on  the  right  to  navigate  the  entire 
volume  of  its  waters.  On  the  ground  that  she  possesses  both  banks  of 
the  Saint  Lawrence,  where  it  disembogues  itself  into  the  sea,  she  denies 
to  the  United  States  the  right  of  navigation,  though  about  one-half  of 
the  waters  of  Lakes  Ontario,  Erie,  Huron,  and  Superior,  and  the  whole 
of  Lake  Michigan,  through  which  the  river  flows,  are  the  property  of 
the  United  States.' 

'•  The  whole  nation  is  interested  in  securing  cheap  transportation 
from  the  agricultural  States  of  the  West  to  the  Atlantic  sea-board.  To 
the  citizens  of  those  States  it  secures  a  greater  return  for  their  labor ; 
to  the  inhabitants  of  the  sea-board  it  affords  cheaper  food  ;  to  the  na- 
tion, an  increase  in  the  annual  surplus  of  wealth.  It  is  hoped  that  the 
Government  of  Great  Britain  will  see  the  justice  of  abandoning  the 
narrow  and  inconsistent  claim  to  which  her  Canadian  provinces  have 
urged  her  adherence." 

President  Grant's  second  annual  message,  1870. 

The  treaty  of  Washington  of  May  8,  1871,  provides  as  follows: 

"Article  XXVI. 

"  The  navigation  of  the  river  St.  Lawrence,  ascending  and  descend- 
ing, from  the  forty-lifth  parallel  of  north  latitude,  where  it  ceases  to 
form  the  boundary  between  the  two  countries,  from,  to,  and  into  the 
sea,  shall  forever  remain  free  and  open  for  the  purposes  of  commerce 
to  the  citizens  of  the  United  States,  subject  to  any  laws  and  regula- 
tions of  Great  Britain,  or  of  the  Dominion  of  Canada,  not  inconsistent 
with  such  privilege  of  free  navigation. 

'^The  navigation  of  the  rivers  Yukon,  Porcupine,  and  Stikine, 
ascending  and  descending,  from,  to,  and  into  the  sea,  shall  forever  re- 
main free  and  open  for  the  purposes  of  commerce  to  the  subjects  of 
Her  Britannic  Majesty  and  to  the  citizens  of  the  United  States,  sub- 
ject to  any  laws  and  regulations  of  either  country  within  its  own  terri- 
tory, not  inconsistent  with  such  privilege  of  free  navigation. 

"Article  XXVII. 

"The  Government  of  Her  Britannic  Majesty  engages  to  urge  upon 
the  Government  of  the  Dominion  of  Canada  to  secure  to  the  citizens 
of  the  United  States  the  use  of  the  Welland,  St.  Lawrence,  and  other 
canals  in  the  Dominion  on  terms  of  equality  with  the  inhabitants  of  the 
Dominion;  and  the  Government  of  the  United  States  engages  that  the 
subjects  of  her  Britannic  Majesty  shall  enjoy  the  use  of  the  St.  Clair 
Flats  Canal  on  terms  of  equality  with  the  inhabitants  of  the  United 
States,  and  further  engages  to  urge  upon  the  State  governments  to 
secure  to  the  subjects  of  Her  Britannic  Majesty  the  use  of  the  several 
State  canals  connected  with  the  navigation  of  the  lakes  or  rivers  trav- 

83 


§  30.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

ersed  by,  oi'  conti^iiou.s  to  the  boimdaiy  line  between  the  iwssessious 
of  the  hijjh  contracting  parties,  on  terms  of  equality  with  the  inhabi- 
tauts  of  the  United  States. 

"ARTICLE   XXVIII. 

"The  navigation  of  Lake  Michigan  shall  also,  for  the  term  of  years 
mentioned  in  Article  XXXIII  of  this  treaty,  be  free  and  open  for  the 
l»uri)oses  of  commerce  to  the  subjects  of  Her  Britannic  IMajesty,  sub- 
ject to  any  laws  and  regulations  of  the  United  States  or  of  the  States 
bordering  thereon  not  inconsistent  with  such  privilege  of  free  navi- 
gation. 

"Article  XXIX. 

"It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article 
XXX HI  of  this  treaty,  goods,  wares,  or  merchandise  arriving  at  the 
l)orts  of  Xew  York,  Boston,  and  Portland,  and  any  other  ports  in  the 
United  States  which  have  been  or  may,  from  time  to  time,  be  specially 
designated  by  the  President  of  the  United  States,  and  destined  for 
Her  Britannic  Majesty's  possessions  in  North  America,  may  be  en- 
teied  at  the  proper  custom-house  and  conveyed  in  transit,  without  the 
l)ayment  of  duties,  through  the  territory  of  the  United  States,  under 
such  rules,  regulations,  and  conditions  for  the  protection  of  the  reve- 
nue as  the  Government  of  the  United  States  may  from  time  to  time 
prescribe;  and  under  like  rules,  regulations,  and  conditions,  goods, 
wares  or  merchandise  may  be  conveyed  in  transit,  without  the  pay- 
ment of  duties,  from  such  possessions  through  the  territory  of  the 
United  States  for  export  from  the  said  ports  of  the  United  States." 

"  The  ocean  is  free  to  all  men,  and  their  rivers  to  all  their  inhabi- 
tants. *  *  ♦  Accordingly,  in  all  tracts  of  country  united  under  the 
hame  ])olitical  society,  we  find  this  natural  right  universally  acknowl- 
etlged  and  protected  by  laying  the  navigable  rivers  open  to  all  their 
iidiabitants.  When  their  rivers  enter  the  limits  of  another  society,  if 
the  right  of  the  upper  inhabitants  to  descend  the  stream  is  in  any  case 
obstructed,  it  is  an  act  of  force  by  a  stronger  society  against  a  weaker, 
condemned  by  the  judgment  of  mankind." 

Report  of  Mr.  Jefferson,  March  18,  1792.     7  Jeff.  Works,  577. 

"  The  Roman  law,  which,  like  other  municipal  laws,  ])laced  the  navi- 
gation of  their  rivers  on  the  footing  of  nature,  as  to  their  own  citizens, 
by  declariug  them  public  (flumina  publica  sunt,  hoc  est  populi  Eomani, 
Inst.  2,  t.  1,  §  2).  declare  also  that  the  right  to  the  use  of  the  shores 
was  incident  to  that  of  the  water.     Ihid.^  §§  1?  3,  4,  5." 

Ih.     7  Jeff".  Works,  ijSO. 

Mr.  Jefferson's  instructions  of  March  I'i,  1792,  to  Messrs.  Carmichael  and 
Short,  as  to  the  uavijiation  of  the  Mississippi  River,  and  as  to  riparian 
rights,  are  given  in  1  Am.  State  Papers  (For.  Rel.),  252. 

As  to  title  to  the  Mississippi,  see  Mr.  J.  Q.  Adams  to  Mr.  De  Ouis,  Oct.  31, 
18ia.     Supra,  $  5. 
81 


CHAP.  II.]  RIVERS.  [§  30. 

The  question  of  the  conflicting  rights  of  Spain  and  of  the  (JnitiMl 
States,  in  1804,  to  the  Mississippi  River,  is  discussed  at  great  length 
in  a  correspondence  between  Messrs.  Monroe  and  Armstrong,  minis- 
ters of  the  United  States  to  Spain  and  France,  and  the  Spanish  and 
French  Governments. 

2  Am.  State  Papers  (For.  Rel.),  596,  j: 

The  right  to  peacefully  navigate  the  Amazon  River  belongs,  in  inter- 
national law,  to  all  maritime  states. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Trousdale,  Aug.  8,  1853.    MSS.  lust.,  Brazil. 

"  I  have  the  honor  to  inform  you  that  I  have  received  a  telegram  from 
the  ministry  of  foreign  relations  of  the  United  States  of  Mexico,  d;!ted 
yesterday  at  the  city  of  Mexico,  in  which  1  am  informed  that  the  (;om- 
manderof  the  United  States  troops  in  Roma,  Texas,  says  that  he  has  in- 
structions from  the  War  Department  to  occnpy  the  islands  of  Morteritos 
and  Sabinos. 

"  As  Mexico  has  always  had  possession  of  that  island,  my  Government 
instructs  me  to  request  that  of  the  United  States  of  America  that  mat- 
ters may  remain  in  statu  quo  nntil  both  Governments  come  to  an  agree- 
ment ui)on  this  siibject. 

"A  note  from  this  legation,  having  reference  to  a  circumstance  rela- 
tive to  that  island,  was  sent  to  your  Department  the  13th  of  March  last, 
which  was  answered  by  you  on  the  8th  of  April  following." 

Mr.  Romero,  Mexican  Minister,  to  Mr.  Frelingbuysen,  Sec.  of  State,  May  24j 
1884.     MSS.  Notes,  Mex.  Leg.,  For.  Eel.,  1884. 

"I  have  the  honor  to  inform  you  that  I  have  to-day  received  a  note 
from  the  foreign  office  of  the  United  Mexican  States,  dated  Mexico,  JMr.y 
23  ultimo,  in  which  I  am  informed  that  according  to  information  ])os- 
sessed  by  that  office  the  islands  of  Morteritos  and  Sabinos,  referred  to 
in  my  note  to  yonr  Department  of  24th  May,  belong  to  Mexico  by  rea- 
son of  having  remained  when  the  dividing  line  between  the  two  coun- 
tries was  laid  down  in  conformity  with  article  5  of  the  boundary  treaty 
of  the  2d  of  February,  1848,  on  the  right  yide  of  the  deepest  channel  of 
the  river,  for  which  reason  they  have  since  then  remained  in  the  i)os- 
session  of  Mexico,  forming  a  part  of  the  niunicipality  of  Mier,  in  the 
State  of  Tamanlii)as. 

"  It  is  true  that  by  reason  of  a  recent  change  in  the  currents  of  the 
Rio  Bravo  both  of  those  islands  are  now  on  the  left  bank  of  the  greater 
arm  and  deeper  channel  of  the  river  ;  but  as,  in  the  opinion  of  the  Mex- 
ican Government,  the  dividing  line  between  the  two  countries  is  that 
which  was  laid  down  by  the  mixed  commission,  which  met  in  conlorni- 
ity  with  the  treaty  of  February  2,  1848,  there  can  be  no  doubt  with  re- 
spect to  the  legitimate  ownership  of  tliose  islands. 

"  I  think  itnnnecessary  to  say  to  you  that  these  islands  are  those 
numbered  12  and  13,  of  which  Maj.  William  H.  Emory,  chief  of  the  bound- 
ary commission  of  the  United  States,  speaks  in  his  report  to  the  Sec 
retary  of  the  Interior,  dated  in  this  city  July  29, 185G,  page 65,  volume  1. 

"  In  view  of  these  facts,  the  Government  of  Mexico  hopes  that  the 
Government  of  the  United  States  will  recognize  the  right  of  Mexico  to 
those  islands  which  is  derived  from  an  existing  treaty  between  the  two 
countries,  and  from  the  demarkation  of  the  line  made  in  conformity 
with  the  aforesaid  treaty  and  supported  by  an  uninterrupted  possession 
of  nearly  forty  years." 

Mr.  Romero,  Mexican  Minister,  to  Mr.  Frelingliuyseu,  Sec.  of  State,  ,Tuuc  2, 
1884.     Ibid. 

85 


»^S  30.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

"llerciTiii};  to  tlic  notes  wliioli  I  addressed  to  your  Department  on 
the  loth  of  March  and  the  l*4th  of  May  last,  and  on  the  2d  instant,  in 
reference  to  the  islands  of  Morteritos  and  Sabinitos,  in  the  Kio  Grande, 
of  which  .Mexico  has  been  in  possession  for  the  reason  that  she  consid- 
ered tbeni  as  an  integral  part  of  her  territory,  I  have  the  honor  to  inform 
you  that  I  have  this  day  received  from  the  department  of  foreign  rela- 
tions of  I\Iexico  various  documents  showing  the  rights  of  Mexico  to  the 
stud  islands.  I  inclose  a  coi>y  of  the  principal  ones  of  these  documents 
and  of  a  drawing  which  was  sent  as  an  inclosure  to  the  report  of  Engi- 
neer Garliab=,  oi  April  19,  1880,  together  with  an  index  showing  their 
dates  and  giving  a  brief  outline  of  their  contents. 

'vlt  appears  from  ihe  said  documents  that  the  aforesaid  islands  were 
to  remain  on  the  right  of  the  deepest  channel  of  the  Eio  Grande,  when 
the  demarkation  of  limits  was  made  according  to  the  treaties  of  Febru- 
ary 2,  1848,  and  December  30,  1853,  belonging  consequently  to  Mexico, 
according  to  the  report  of  Engineer  Ignacio  Garhas  (inclosure  No.  4); 
that,  among  various  changes  that  took  i)lace  in  the  bed  of  the  river, 
owing  to  freshets  in  the  year  1865,  the  island  of  Morteritos  became 
united  to  another  which  was  quite  near  it,  but  the  new  island  remained 
on  the  right  of  the  deepest  channel  of  the  river;  that  Mexicans  were 
the  owners  of  the  island  contiguous  to  the  right  bank,  and  citizens  of 
the  United  States  the  owners  of  the  other,  but  that  when  both  were 
united  all  the  parties  interesced  made  an  agreement  on  the  9th  of  March, 
1874,  before  the  court  at  Mier,  whereby  Mexicans  remained  in  posses- 
sion of  the  whole  island  ;  that  the  island  has  been  in  the  possession  of 
Mexico  since  that  time;  judicial  acts  being  exercised  there,  such  as  the 
establishment  of  a  section  of  vigilance,  and  grain  being  sown  by  Mexi- 
can citizens ;  that  another  change  which  took  place  in  the  deepest  chan- 
nel of  the  Rio  Grande  left  the  island  of  Morteritos  on  the  left  side  of 
the  channel,  and  for  this  reason,  on  the  20th  of  January  last,  several 
armed  persons  from  Koma,  Tex.,  headed  by  W,  W.  Bohorman,  the 
judge  at  Roma,  in  Starr  County,  Texas,  invaded  the  island  of  Morteri- 
tos, destroyed  several  inclosures,  drove  out  the  Mexican  owners,  and 
divided  their  property  among  themselves;  and  that  a  short  time  before 
several  residents  of  Roma  had  appealed  to  the  judicial  authorities  of 
Texas,  requesting  them  to  declare  that  the  island  belonged  to  them  by 
accession. 

"I  shall  not  now  stop  to  speak  of  the  incident  relative  to  private 
property  on  the  island  of  Morteritos,  which,  as  appears  from  the  in- 
closed document,  was  declared  to  belong  to  Dona  Guadalupe  Garcia, 
according  to  the  decision  of  the  supreme  court  of  justice  of  Mexico, 
dated  October  24,  1830,  because  in  this  note  I  am  simi)ly  endeavoring 
to  demonstrate  its  nationality;  that  is  to  say,  that  it  forms  a  part  of 
the  territory  of  Mexico. 

"Without  prejudice  to  the  subsequent  transmission  to  you  of  the 
report  of  the  engineer  who  has  been  sent  by  the  Government  of  Mexico 
to  the  I\io  Grande  to  make  a  study  of  this  subject  on  the  spot,  together 
with  such  otner  data  as  I  may  hereafter  receive  from  my  Government, 
I  have  the  honor  to  inform  you  that  the  department  of  foreign  relations 
of  the  United  States  of  ^Mexico  has  informed  me,  by  a  note  bearing- 
date  of  the  28th  of  May  last,  that— 

'"In  the  inclosed  documents  there  are  irrefutable  and  fall  data,  show- 
ing unmistakably  the  right  of  eminent  domain  of  Mexico  to  the  island 
of  Morteritos,  amcAg  them  the  survey  and  the  sounding  made  by  our 
consul  at  Rio  Grande  City,  the  agreement  made  by  the  inhabitants  of 
the  two  countries  before  the  court  at  Mier  with  regard  to  the  posses- 
86 


CHAP.  II.]  RIVERS.  [§  30. 

siou  of  the  land  on  the  island,  the  report  of  Eufjincer  Gartias,  and  the 
fact  that  a  section  of  vioilance  was  established  on  the  island  withont 
any  attempt  having  hitherto  been  made  by  the  Government  of  the 
LTuited  States  to  exercise  jurisdiction  on  that  island,  or  to  interfere 
with  that  of  the  Mexican  authorities.' 

"In  view  of  these  considerations,  the  Government  of  Mexico  instructs 
me  'to  request  that  of  the  United  States  to  issue  the  necessary  orders 
to  the  end  that  the  free  action  of  the  Mexican  authorities  on  that  island 
may  not  be  obstructed.' " 

Mr.  Romero,  Mexican  Minister,  to  Mr.  Frelinghuysen,  Sec.  of  State,  June  12, 

1884 ;  Ibid. 
For  the  papers  .submitted  with  this  note  by  the  Mexican  Minister  in  support  of 

the  claim  of  liis  Government,  see  For.  Rel.,  1884,  pp.  382-39:^. 

"Your  notes  of  the  13th  of  March,  24tli  of  May,  and  2d  and  12th  of 
June,  of  the  present  year,  have  presented  the  question  of  the  disputed 
ownership  of  two  islands  in  the  Rio  Bravo,  near  Roma,  Tex.  This 
question  has  received  the  careful  consideration  due  to  its  importance, 
and  I  have  now  the  honor  to  acquaint  you  with  the  reply  of  this  Gov- 
ernment to  the  representations  made  on  behalf  of  that  of  Mexico,  and 
especially  to  the  detailed  case  presented  with  your  note  of  12th  June. 

"The  two  islands,  as  you  state,  are  known  in  Spanish  as  Morteritos 
and  Sabinitos.  and  in  your  note  of  the  2d  of  June  it  is  assumed  that 
they  are  the  islands  designated  as  Nos.  12  and  13  at  the  time  of  the 
original  survey. 

"  This  is,  however,  incorrect  of  Sabinitos  Island,  which  appears  in 
the  maps  of  the  original  survey  made  by  the  boundary  commission  in 
1853  as  No.  14,  and  is  therein  credited  to  Mexico.  As  the  papers  sub- 
mitted by  you  show  no  question  of  importance  aflectiug  the  island  of 
Sabinitos  (No.  14)  it  may  be  laid  aside  for  the  present. 

"The  question  seems  to  be  confined  to  the  island  known  as  Morteritos, 
which  appears  in  the  charts  of  the  boundarv  commission  as  Beaver 
Island,  No.  13. 

"This  island  was  formerly  the  most  southerly  and  the  larger  of  two 
pod-shaped  islands  lying  in  a  bend  of  the  river  near  the  Texan  town  of 
Roma.  The  channel,  never  at  any  time  navigable,  which  formerly  sep- 
arated the  two  islands  is  now' dry,  and  the  channel  to  the  northward  of 
the  twin  island  so  formed  is  the  widest,  and  at  the  present  tinje  the 
deepest  of  the  two  arms  of  the  river. 

"  The  Mexican  claim  to  jurisdiction  rests  briefly  on  the  following 
bases : 

"].  A  scientific  report  of  the  engineer,  Garfias,  dated  16th  April, 
1880,  which  argues  that  the  present  deepest  channel  to  the  northward 
must  always  have  been  the  deepest  (and  therefore  under  the  treaty  of 
Guadalupe-Hidalgo  the  boundary  line  between  the  two  countries)  in 
pursuance  of  an  observed  peculiarity  of  rivers  by  which  the  deepest 
flow  of  water  follows  the  hollow  of  a  curve  in  the  river  bed. 

"  2.  Ownership  by  Mexican  citizens,  and  an  agreement  among  said 
owners,  in  March,  1874,  whereby  the  island  of  Morteritos  and  its  accre- 
tions were  confirmed  to  them  under  the  authority  of  Mexico. 

"  The  second  of  these  points  is  to  be  dismissed  forthwith  from  con- 
sideration, for  this  Government  does  not  admit,  nor  if  the  case  were  re- 
versed is  it  to  be  supposed  that  the  Mexican  Government  would  admit, 
the  right  of  alien  owners  of  land  to  transfer,  und*:*  color  of  any  judicial 
agreement  whatsover,  the  territorial  domain  over  their  estates  to  the 
jurisdiction  and  sovereignty  of  the  nation  to  whom  such  individuals 

87 


§  ,80.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

owe  allepance.  This  position  is,  moreover,  wholly  opposed  to  the  con 
tentioii  of  the  ^Mexican  Government  itself,  that  the  territorial  jnrisdic- 
tions  established  on  behalf  of  the  respective  parties  to  the  treaty  of 
Gaadalupe-Ilidalgo  remain  forever  as  originally  fixed  nnder  that  com- 
l)act,  and  are  not  to  be  affected  by  any  abrupt  changes  in  the  course  of 
the  river  Bravo. 

"  This  reduces  the  question  to  one  of  simple  fact,  namely,  the  ascer- 
tainment of  the  boundary  channel  fixed  by  the  commissioners  under 
the  treaty  of  Guadalupe-Hidalgo. 

"To  the  end  of  ascertaining  that  fact,  an  examination  of  the  original 
records  and  charts  of  the  commissioner  of  survey  has  been  made  by 
Brig.  Gen.  W.  H.  Emory,  of  the  United  States  Army,  under  whose  su- 
pervision, as  commissioner  on  the  part  of  the  United  States,  the  original 
survey  and  determination  of  the  boundary  was  efiected. 

"  That  officer,  under  date  of  the  19th  ultimo,  reports  as  follows: 

u  *  *  *  gy  reference  to  original  notes  and  maps  in  State  Depart- 
ment, I  find  Islands  j^os.  12  and  14  were  assigned  to  Mexico,  and  14,  I 
believe  to  be  Island  Sabinos  [Sabinitos]  referred  to  by  Seiior  Eomero. 

"  Island  Xo.  13  was  assigned  to  the  United  States.  It  is  no  doubt 
the  island  called  by  Seuor  Romero  Morteritos,  and  by  me  Beaver  Is- 
land. I  say  of  that  island,  in  my  report,  that  '  the  waters  of  the  Bio 
Grande  are  divided  at  that  point  into  three  parts,  and  the  channel  that 
lies  nearest  to  the  Mexican  shore  is  so  narrow  that  steamers  can  with 
difficulty  pass  through  it,  yet  the  branches,  by  reason  of  their  shallow- 
ness, are  wholly  impassable  for  them.  An  attempt  was  made  by  the 
Mexican  local  authorities  to  arrest  a  steamboat  in  its  passage  through 
the  narrow  channel,  but  the  actual  experience  of  the  navigator  proved 
it  to  be  the  true  channel  and  consequently  the  boundary  between  the 
two  countries. 

"  It  was  farther  agreed  between  the  commissioners  that  in  case  the 
channel  changed,  the  right  of  navigation  should  remain  unimpaired  to 
both  countries,  but  the  jurisdiction  of  the  land  should  remain  as  we 
had  arranged. 

"  So  far  as  the  question  of  territorial  jurisdiction  in  the  event  of  a 
change  in  the  channel  is  concerned,  the  agreement  of  the  commissioner 
remains  merely  an  expression  of  opinion,  which,  however  valuable  as 
an  enunciation  of  a  theoretical  principle,  has  not  been  confirmed  as 
between  the  two  Governments.  That  of  Mexico  has,  however,  on 
various  occasions,  put  forth  this  principle  as  its  own,  and  a  proposal 
has  been  made  through  your  predecessor,  Senor  Mariscal,  and  through 
you,  to  negotiate  a  formal  conventional  agreement  on  that  basis  in 
settlement  of  disputes  touching  the  true  river  boundary  under  the 
treaty  of  Guadalnpe-Hidalgo.  That  proposal  is  now  under  attentive 
consideration. 

"As  to  the  original  ownership  of  the  two  islands  known  by  the  United 
States  commission  as  Beaver  Islands,  being  the  island  known  to  your 
Government  as  Moiteritos,  and  the  smaller  island  lying  parallel  with 
Morteritos,  and  to  the  north  of  it,  there  can  be  no  doubt  that  they  were 
by  the  survey  assigned  to  the  United  States. 

"Against  the  actual  record  of  the  commission  (the  original  charts  of 
which  you  have  been  afforded  an  opportunity  of  inspecting  in  person 
in  company  with  General  Emory)  the  speculative  and  scientific  report 
of  Engineer  Garfias  and  his  survey  and  soundings,  made  seventeen 
years  after  the  original  official  determination  of  the  boundarv  channel, 
can  have  no  weight  whatever,  being  based  on  an  evidentlv  changed 
condition  of  things,  whereby  the  old  middle  water-course  between  the 
88 


CHAP.  II.]  RIVERS.  [§  30. 

two  islands  liiis  disappeared,  aud  the  most  northerly  of  the  three  chan- 
nels has  been  dellected  and  deepened  in  the  process  of  time. 

"This  Goveinment  must  deny  the  implication  conveyed  in  your  note 
of  June  12,  and  its  accompaniments,  that  the  United  States  have  tacitly 
acquiesced  in  the  jurisdictional  rij^jhts  from  time  to  time  assumed  by 
the  Mexican  local  authorities  over  the  territory  covered  by  the  islands 
in  question.  No  case  in  point  has  arisen  to  call  the  attention  of  this 
Government  to  the  question.  The  owners  of  the  land  were  Mexican 
citizens,  as  it  api)ears,  and  their  acquiescence  in  the  Mexican  claims  of 
jurisdiction  over  their  land,  although  natural  under  the  circumstances, 
was  wholly  devoid  of  any  confirmatory  power  as  against  the  rights  of 
the  United  States  under  the  treaty.  It  was  not  until  very  recently, 
when  the  action  of  the  Mexican  authorities  of  Mier  developed  a  wholly 
untenable  claim  to  jurisdiction  ever  a  broad  tract  of  low-lying  land  on 
the  United  States  bank  of  the  river,  which  land  it  was  pretended  had 
at  some  time  become  united  with  one  of  the  islands  through  the  filling 
up  of  the  water-way  between  them,  that  a  case  calling  for  investigation 
and  action  was  presented,  involving  also,  as  it  does,  the  question  of  the 
true  ownership  of  the  island  claimed  to  have  been  enlarged  by  the  ac- 
cretion of  United  States  territory.  The  rights  of  the  United  States  in 
the  premises  remained,  perhaps,  dormant,  but  without  laches  on  their 
part,  and,  on  the  issue  being  revived,  those  rights  revive,  too,  in  all 
their  force. 

"  Touching  the  reference  in  your  note  to  the  statement  found  on  page 
65  of  the  Rei)ort  of  the  Boundary  Survey,  that  'Islands  Nos.  ]2  and 
13,  between  Kinggold  Barracks  and  Roma,  both  fall  to  the  United 
States,'  it  should  be  here  stated  that  the  report  is  erroneous,  through 
a  typographical  mistake.  The  original  charts  and  notes  show  that 
Island  No.  12  is  a  smail  island  named  'Green  Key  Island'  on  the 
charts,  situated  in  an  abrupt  bend  of  the  river,  about  half  way  between 
Fort  Ringgold  and  Morteritos  Island.  Island  No.  13,  as  already  shown, 
comprises  the  twin  Beaver  Islands,  whereof  the  larger  and  more  south- 
erly was  calle'd  by  the  Mexicans  Morteritos.  The  island  known  to 
both  parties  as  Sabinitos  (or  Sabinos)  is  marked  No.  14  07i  the  chart, 
and  lies  a  short  distance  above  Roma. 

"  In  conclusion  I  have  the  honor  to  inform  you,  in  answer  to  your 
several  notes,  that  the  facts  and  record  of  the  case  warrant  and  de- 
mand that  the  Government  of  the  United  States  shall  regard  its  ter- 
ritorial jurisdiction  over  the  island  of  Morteritos,  otherwise  Beaver 
Island  (No.  13),  as  established  by  the  boundary  comnjission  under  the 
treaty  of  Guadalupe-Hidalgo,  and,  consequently,  that  the  Mexican 
pretension  to  that  island  and  to  accretions  thereto  from  the  left  or 
United  States  bank  of  the  Rio  Grande  shall  be  denied." 

Mr.  Freliughuyseu,  Sec.  of  State,  to  Mr.  Romero,  July  10,1884.     MSS.  Notes, 
Mexico ;  ibid. 

"  By  instruction  No.  550,  of  the  23d  of  April  last,  you  were  ■  ac- 
quainted with  a  dispute  then  lately  arisen  concerning  the  legitimate 
jurisdiction  over  certain  islands  in  the  Rio  Grande  (Rio  Bravo)  near 
Roma,  Tex.,  and  you  were  directed  to  present  the  matter  to  the  Mex- 
ican Government  and  ask  consideration  of  our  just  claim  to  jurisdic- 
tion in  the  prei^jises. 

"  Since  then  the  Mexican  Government  has  made,  through  Senor 
Romero,  under  date  of  June    12   last,  a  counter   complaint,   claiming 

89 


§  30.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

Morteritos  Tslaiul  as  Mexican  territory,  with  its  accretions,  and  pro- 
testing against  any  attempt  on  tbe  p;irt  of  the  United  States  to  exf^r- 
cise  authority  over  tliat  island. 

"  The  note  of  Mr.  Romero  and  its  inclosures,  being  very  voluminous 
and  not  yet  wholly  translated,  could  not  be  sent  to  you  herewith  with- 
out involving  inconvenient  delay.  Copies  will,  however,  go  to  you  as 
soon  as  possible,  to  complete  your  record. 

"The  question  appearing  to  be  one  of  simple  fact,  to  be  settled  by 
the  records  of  the  boundary  commission,  under  the  signatures  of  botli 
commissioners,  now  on  file  in  this  Department,  I  requested  the  Secre- 
tary of  War  to  direct  Brig.  Gen.  W.  H.  Emory,  U.  S,  Army,  the  United 
States  commissioner  on  the  original  survey,  to  examine  the  records  and 
charts  thereof.  General  Emory  has  done  so,  Senor  Romero  having 
had  at  the  same  time  opportunity  to  personally  inspect  the  records 
and  charts.  The  general's  report  removes  all  ground  for  doubt  that 
Morteritos  belongs  to  the  United  States,  under  the  prescriptions  of 
the  treaty  of  Guadalupe-Hidalgo. 

"  I  have  accordingly  replied  to  the  Mexican  contention  by  a  note  to 
Senor  Romero,  of  which  I  inclose  a  copy  for  your  information. 

"  The  question  would  appear  to  have  been  in  part  founded  on  a  case 
of  mistaken  identity,  in  assuming  that  two  small  twin  islands  below 
and  near  to  Roma,  and  separated  at  the  time  of  the  survey  by  a  shal- 
low water-course  now  believed  to  be  filled  up,  were  the  Morteritos  and 
Sabinos  Islands  of  the  Mexican  contention  and  identical  with  islands 
Xos.  12  and  13.  It  seems  clear  that  Sabinitos  (or  Sabinos)  is  a  large 
single  island,  lying  some  distance  above  Roma,  and  is  acknowledged 
Mexican  territory  both  by  the  records  of  the  survey  and  in  the  ab- 
sence, so  far  as  known  here,  of  any  occasion  for  dispute  in  respect 
thereof.  Island  No.  12,  to  which  Seiior  Romero  refers  in  one  of  his 
notes  on  the  subject,  lies  lower  down  the  river,  near  Ringgold  Bar- 
racks, is  styled  on  the  survey  charts  Green  Key  Island,  and  likewise 
appears  to  belong  to  Mexico  without  dispute. 

"  It  is  apparently  in  respect  only  of  the  small  twin  islands,  known  on 
charts  both  as  '  Beaver  Islands'  and  as  'Island  ^o.  13,'  that  any  dis 
pute  exists.  The  larger  of  these,  lying  nearest  to  the  Mexican  shore, 
appears  to  be  known  to  the  Mexicans  as  'Morteritos.'  The  other 
smaller  island  of  the  pair  may  or  may  not  be  locally  known  as  'Sabi 
nos.'  It  bears  no  separate  name  on  the  charts.  The  fact  is,  however, 
wholly  immaterial,  for  both  the  islands  are  by  the  two  commissioners 
a.4<igned  to  the  United  States. 

"After  reading  my  note  to  Seiior  Romero  and  familiarizing  yourself 
with  the  ground  therein  taken,  you  will  seek  a  conference  with  the 
Mexican  secretary  for  foreign  affairs  on  the  subject.  You  will  point 
out  to  him  that  under  whichever  aspect  it  be  viewed,  whether  as  rest- 
ing on  a  change  in  the  deepest  channel  subsequent  to  the  assignment 
90 


CHAP.  II.]  RIVERS.  [§  30. 

of  the  survey,  or  on  the  allegiance  of  the  reputed  Mexican  owners  of 
the  laud  and  on  any  agreement  among  them  of  which  the  Mexican 
courts  may  liave  taken  cognizance,  the  Mexican  claim  is  completely  at 
variance  with  the  ground  taken  by  the  Mexican  Government  itseli",  that 
the  boundary  fixed  by  the  survey  is  definitive,  and  not  to  be  changed. 
You  may  advert  to  the  proposal  made  to  this  Government  by  Mr. 
Eomero  (in  a  note  dated  31st  May),  to  review  the  negotiation  proposed 
in  1875  by  Senor  Mariscal  to  Mr.  Fish  for  a  convention  to  settle  bound- 
ary disputes  growing  out  of  changes  in  the  channel  of  the  Bravo  by 
declaring  that  no  such  change  shall  affect  the  actual  boundary  fixed  by 
the  survey,  and  you  may  observe  that  this  Government  can  hardly  be 
expected  to  attach  much  weight  to  that  proposition  if,  in  the  first  case 
of  dispute  arising,  the  Mexican  Government  is  found  to  adopt  a  diamet- 
rically opposed  theory.  You  may  also  find  it  convenient  to  advert  to 
the  circumstance,  shown  by  the  inclosures  to  my  No.  520,  that  the 
Mexican  owners  claim  the  subsequent  accretions  to  Morteritos  as  be- 
longing to  them,  and,  consequently,  to  the  territorial  jurisdiction  of 
Mexico  also,  and  comment  on  its  untenable  character ;  for  even  if  Mor- 
teritos Island  were  Mexican  territory,  which  the  record  of  the  survey 
shows  it  is  not,  the  annexation  of  United  States  territory  by  accretion 
or  by  change  of  channel  could  not  be  recognized. 

"  You  will  further  point  out  that  in  this  contention  we  have  the  right 
to  deem  ourselves*  the  aggrieved  party.  The  Mexican  authorities  at 
Mier  have  assumed  to  exercise  territorial  jurisdiction,  not  merely  over 
the  island  of  Morteritos,  but  over  part  of  the  territory  of  the  United 
States  which  has  since  accidentally  been  joined  to  that  island  by  the 
closing  of  a  water-way.  Our  efltbrt  to  assert  the  jurisdictional  power  be- 
longing to  us  of  right,  has  been  resented  as  an  unwarrantable  interfer- 
ence and  made  the  occasion  of  a  complaint  which  proves  to  be  baseless. 
Notwithstanding  this,  the  Government  of  the  United  States  promptly 
acceded  to  a  request  of  the  Mexican  minister,  and  directed  its  authori- 
ties on  the  frontier  to  avoid  all  pretext  of  conflict  with  the  Mexican  au- 
thorities until  the  question  of  ownership  should  be  amicably  settled.  In 
communicating  to  the  Secretaries  of  the  Treasury  and  of  War  the  con- 
clusion of  this  Government  that  Morteritos  is  wholly  of  the  domain  of 
the  United  States,  the  request  that  the  officers  of  this  Government  in 
that  quarter  should  continue  to  avoid  forcible  assumption  of  jurisdiction 
has  been  renewed. 

"  Under  all  these  circumstances,  you  will  formally  ask  that  the  Mex- 
ican Government  forthwith  cease  any  claim  to  territorial  jurisdiction 
over  the  island  of  Morteritos,  and  cause  to  be  duly  respected  the  bound- 
ary line  to  the  south  of  that  island,  and  between  it  and  the  Mexican 
bank,  as  determined  by  the  United  States  and  Mexican  commissioners 
in  the  survey. 

"  Upon  the  removal  of  this  question  from  the  field  of  debate,  this  Gov- 

91 


§  30.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

ernineut  will  have  ])leasure  in  takin.u'  up  aiid  considering  Senor  Marls- 
cars  original  proposal,  now  revived  bj^  SeQor  Romero,  for  negotiating'  a 
formal  convention  in  settlement  of  like  disputes  in  future." 

Mr.  Frelinghiiysen,  Sec.  of  State,  to  Mr.  Morgan,  July  11,  1884.     MSS.  Instr., 
Mexico ;  ibid. 

"I  have  to  acknowledge  the  receipt  of  your  dis])atch,  Xo.  GOO,  July 
11, 1884,  in  regard  to  a  dispute  concerning  the  legitimate  jurisdiction 
over  certain  islands  in  the  Rio  Grande  near  Roma,  Tex.,  and  in  which  I 
was  instructed,  to  'formally  ask  that  the  Mexican  Government  forth- 
with cease  any  claim  to  territorial  jurisdiction  over  the  i.slands  of  Mor- 
teritos,  and  cause  to  be  duly  respected  the  boundary  line  to  the  south 
of  that  island  and  between  it  and  the  Mexican  bank,  as  determined  by 
the  United  ^7rates  and  Mexican  commissioners  in  the  survey.' 

"  I  was  unable  to  obtain  an  interview  with  Senor  Fernandez  until  the 
31st  ultimo. 

"  I  then  informed  him  that,  as  he  was  aware,  a  question  had  lately 
arisen  between  our  respective  Governments  concerning  the  legitimate 
jurisdiction  over  certain  islands  in  the  Rio  Giande  (Rio  Bravo)  near 
Itoma,  Tex.,  and  the  principal  contention,  and  the  one  to  which  I  would 
at  i)resent  confine  myself,  was  the  island  of  '  Morteritos,'  the  Mexican 
Government  claiming  that  the  island  with  its  accretions  belongs  to 
Mexico,  while  the  United  States  contends  that  the  island,  or  what  was 
the  island,  forms  part  of  the  territory  of  the  United  States. 

"  I  said  that  the  boundary  commissioners  appointed  under  the  treaty 
of  Guadalupe  Hidalgo  placed  this  island  within  the  jurisdiction  of  the 
United  States,  and  that  it  having  been  joined  by  accretion  to.  the  north 
bank  of  the  river,  Mexico  claimed  not  only  the  island  but  the  accre- 
tion referred  to,  and  that  the  Mexican  authorities  at  ]Mier  had  assumed 
to  exercise  a  jurisdiction  not  merely  over  the  island  but  over  that  part 
of  the  territory  of  the  United  States  which  has  since  been  accidentally 
joined  to  that  island  (Morteritos)  by  the  closing  of  a  waterway. 

"  I  further  said  that  the  eflbrts  of  the  United  States  to  assert  juris 
dictional  i)ower  belonging  to  them  of  right  has  been  resented  as  an  un- 
warrantable interference  and  made  the  occasion  of  a  complaint  by 
Mexico  which  proves  to  be  baseless.  aSTotwithstanding  this,  however, 
the  Government  of  the  United  States  promptly  acceded  to  a  request  of 
the  :\rexican  minister  at  Washington,  and  directed  its  authorities  on  the 
frontier  to  avoid  all  pretext  of  conflict  with  the  Mexican  authorities 
until  the  question  of  ownership  should  be  amicably  settled,  and  that 
even  now  in  communicating  to  the  Secretaries  of  the  Treasury  and  of 
War  the  conclusion  arrived  at  by  the  United  States  Government  that 
the  island  was  wholly  the  domain  of  the  United  States,  the  request  had 
been  again  renewed  that  the  officers  of  the  Government  in  that  quarter 
should  continue  to  avoid  forcible  assumption  of  jurisdiction. 

"  I  further  said  that  the  Mexican  claim  to  jurisdiction  appeared  to 
rest  upon  two  grounds  : 

"  1.  A  scientific  report  of  the  engineer,  Garfias,  dated  IGth  April, 
1880,  which  argues  that  the  ])resent  deejjcst  channel  to  the  northward 
must  always  have  been  the  deepest  (and  therefore  under  the  treaty  of 
Guadalupe  Hidalgo  the  boundary  line  between  the  two  countries')  in 
pursuance  of  an  observed  peculiarity  of  rivers  by  which  the  deepest 
How  of  water  follows  the  hollow  of  a  curve  in  the  river  bed. 

"2.  Ownership  by  Mexican  citizens,  and  an  agreement  among  said 
02 


CHAP.  II.]  KIVEKS.  [§  30. 

owners  ih  March,  1874,  wliereby  the  island  of  Morterito.s  and  its  accre- 
tions were  confirmed  to  them  under  the  authority  of  ^Mexico. 

''  I  informed  Sefior  Fernandez  that  the  seeontl  of  these  points  must 
be  dismissed  from  consideration,  as  the  (lovernment  of  the  United 
States  did  not  admit  the  right  of  owners  of  hmd  to  transfer  under  color 
of  any  judicial  agreement  whatever  the  territorial  domain  over  their 
estates  to  the  jurisdiction  and  sovereignty  of  the  nation  to  whom  such 
individuals  owe  allegiance. 

"1  then  said  that  this  reduced  the  question  to  one  of  sim])le  fact, 
namely,  the  ascertainnjent  of  the  boundary  channel  fixed  b^-  the  com- 
missioueis  under  the  treaty  of  Guadalupe-Hidalgo.  This,  1  said,  as  I 
had  renjarked  before,  was  done  by  the  said  commissioners,  they  having 
j)Iaced  the  island,  at  the  time  of  the  survey,  withiu  the  jurisdiction  of 
the  United  States. 

"I  informed  Sehor  Fernandez  that  I  had  been  instructed  to  formally 
ask  that  his  Government  Ibrthwith  cease  any  claim  to  territorial  juris- 
diction over  the  island  of  Morteritos,  and  cause  to  be  duly  respected 
the  boundary  line  to  the  south  of  that  island  and  between  it  and  the 
]\Iexican  bank,  as  determined  by  the  United  States  and  Mexican  com- 
missioners in  the  survey. 

''I  said  to  Seiior  Fernandez  that  on  the  31st  May  last  Seuor  Eomero, 
the  Mexican  minister  at  Washington,  had  proposed  to  you  to  revive 
the  pro]iosed  negotiations  made  by  Sefior  Mariscal  to  Mr.  Fish  in  the 
year  187o  for  a  convention  to  settle  boundary  disputes  growing  out  ot 
changes  in  the  channel  of  the  Bravo,  and  declaring  that  no  such  change 
shall  afl'ect  tiie  actual  boundary  fixed  by  the  survey. 

"1  said  that  upon  the  removal  of  the  question  of  the  island  of  Morteri- 
tos from  the  field  of  debate  1  was  authorized  to  say  that  the  Government 
of  the  United  States  would  have  pleasure  in  considering  Sefior  Maris- 
caFs  original  })roposition,  which  has  lately  been  renewed  by  Sefior  Ro- 
mero, as  above  stated,  for  negotiating  a  formal  convention  for  the  set- 
tlement of  like  disputes  in  future,  but  at  the  present  moment,  however, 
tlie  Governm(>nt  ot  the  United  States  could  hardly  be  expected  to  at- 
tach much  weight  to  that  ])roi)Osition  if  in  the  first  case  of  disi)ute  aris- 
ing the  Mexican  Government  was  found  to  a  adopt  a  diametrically 
opposite  course. 

'•  Sehor  Fernandez  informed  me  that  the  question  of  the  proprietorship 
of  the  island  of  Morteritos  had  been  submitted  to  the  proper  Depart- 
ment, and  that  as  soon  as  he  should  leceive  a  re|)ort  therefrom  he 
would  inform  me  of  the  decision  thereof. 

"1  suggested  to  him  that  as  the  question  was  one  of  importance  I 
would  be  glad  to  receive  his  reply  at  as  early  a  date  as  possible. 

"  Sefior  Fernandez  requested  me  to  transmit  to  him  a  memorandum 
of  the  interview  which  we  had  had  upon  the  subject,  which  I  did  on 
the  day  following  (August  1,  1884),  which  is  substantially  as  reported 
in  the  foregoing. 

''1  have  seen  Sefior  Fernandez  upon  several  occasions  since  the  31st 
ultimo,  but  he  has  said  nothing  to  me  upon  the  subject  further  than  that 
he  had  received  no  report  from  the  Mexican  authorities  with  reference 
to  the  island,  and  1  therefore  deem  it  projier  to  let  you  see  that  I  have 
c()mi)lied  with  your  instructions." 

Mr.  Morgan  to  Mr.  Frolinj^diiiyscu,  See;,  of  State,  Aug.  11,  1884.  MSS.  Dispatches, 
Mexico ;  ihid. 

"1  have  the  honor  to  inform  you  that  I  received  in  due  time  and 
transmitted  to  my  Government   your  note  of  the  10th  July  last,  in 

93 


§  30.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

reply  to  those  which  1  addressed  to  the  Department  on  the  13th  of 
March  and  the  24th  of  the  ])receding  May,  and  the  2d  and  12th  of 
June,  with  respect  to  the  question  raised  touching  the  ownership  of  the 
ishmds  of  Morteritos  and  Sabinitos,  situated  in  the  Rio  Bravo. 

"You  were  ])leased  to  state  in  the  aforesaid  note  that  the  island  of 
Sabinitos  api)eared  marked  as  N^o.  14  in  the  maps  of  the  original  sur- 
vey made  by  the  boundary  commission  in  1853,  and  that  it  remained 
on  tlie  ^Mexican  side,  for  whicb  reason  there  cau  be  no  doubt  thereto, 
and  with  respect  to  the  island  of  Morteritos  or  Beaver  Island  or  Island 
Xo.  13,  you  state: 

"That  the  facts  and  record  of  the  case  warrant  and  demand  that 
the  Government  of  the  United  States  shall  regard  its  territorial  juris- 
diction over  the  island  of  Morteritos,  otherwise  Beaver  Island  (No.  13), 
as  established  by  the  boundary  commission  under  the  treaty  of  Guad- 
aln])e- Hidalgo. 

"To  the  end  that  the  Mexican  Government  might  better  examine 
the  bases  presented  by  you  in  order  to  reach  the  conclusions  which 
you  expressed,  I  solicited,  together  with  General  Emory,  permission 
to  examine  the  original  maps  of  the  mixed  boundary  commission  which 
exist  in  the  Department  of  State,  since  I  could  not  here  consult  the 
co])ies  existing  in  Mexico. 

"There  appeared  to  be  an  evident  confusion  in  the  name  of  Island 
No.  13,  and  it  did  not  clearly  appear  whether  it  was  or  was  not  the 
island  of  Morteritos. 

"A  careful  examination  on  this  subject  having  been  made  by  my 
Government,  the  President  has  decided  not  to  insist  upon  the  rights 
of  Mexico  over  the  island  of  Morteritos  in  the  supposition  that  it  is 
Island  No.  13,  or  Beaver  Island. 

"The  bases  of  this  decision  rest  upon  the  stipulations  of  the  fifth 
article  of  the  treaty  of  Guadalupe- Hidalgo  of  February  2, 1848,  that  the 
dividing  line  between  our  two  countries  from  the  Gulf  of  Mexico  to  Paso 
del  Norte  should  be  the  center  of  the  Rio  Grande,  and  that  where  this 
river  had  more  than  one  channel  the  line  should  follow  the  deepest. 
This  circumstance  being  borne  in  mind  by  the  boundary  commission  in 
laying  down  the  line,  the  channel  which  lay  to  the  south  of  Island  No. 
13,  or  Morteritos,  or  Beaver  Island,  left  this  island  upon  the  side  of  the 
United  States. 

"As  this  is  the  basis  presented  by  the  Government  of  the  United 
States  to  defend  its  rights  to  that  island,  it  thus  recognizes  that  the 
limit  between  the  two  Republics  are  those  fixed  by  the  treaty  of  Guada- 
lupe-Hidalgo, such  as  were  laid  down  by  the  mixed  commission,  with- 
out having  been  altered  by  the  changes  occasioned  by  the  current  of 
the  river,  whether  in  its  margins  or  the  deepest  of  its  channels. 

"  It  is  very  satisfactory  to  me  to  see  that  in  this  important  point  there 
is  an  uniformity  of  views  and  principles  between  our  two  Governments. 

"I  cannot  end  this  note  without  calling  your  attention  to  the  good 
faith  and  justice  of  the  Government  of  Mexico  in  the  present  case,  since 
instead  of  leaving  this  matter  pending,  or  proposing  that  it  should  be 
decided  l)y  the  treaty  which  it  has  submitted  for  the  consideration  of 
the  United  States,  it  has  acted  with  loyalty  in  recognizing  their  rights 
without  reserve." 

-Mr.  Romero,  Mexican  Minister,  to  Mr.  Frelinghuyseu,  Sec.  of  State,  Oct.  9. 
lHf^4.     MSS.  Notes,  Mex.  Leg. ;  ibid. 

"The  State  of  Texas  has  municipal  jurisdiction  under  the  law  of  na- 
tions over  the  Rio  Grande  to  the  middle  of  the  stream,  so  far  as  it 
94 


CHAP.    II.]  KIVEES.  [§  30. 

divides  Texas  from  Mexico.  This  is  subject  to  such  iuteruational  juris- 
diction as  the  United  States  may  have  over  .such  waters  under  the 
Constitution  of  the  United  States,  and  to  the  right  of  the  free  use  by 
Mexico  of  the  channel." 

After  quoting  Article  V  of  the  treaty  of  Guadalupe  Hidalgo,  the  in- 
struction proceeds  to  say : 

"  It  may  be  proper  to  add  that  it  has  been  held  iu  this  Department 
that  when,  through  the  changing  of  the  channel  of  the  Kio  Grande, 
the  distance  of  an  island  in  the  river  from  the  respective  shores  has 
been  changed,  the  line  adjusted  by  the  commissioners  under  the  treaty 
is  nevertheless  to  remain  as  originally  drawn." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Bowen,  June  12,  1886.     MSS.  Dom.  Let. 

■  When  a  great  river  is  the  boundary  between  two  nations  or  states, 
if  the  original  property  is  iu  neither  and  there  be  no  convention  re- 
specting it,  each  holds  to  the  middle  of  the  stream.  But  where  a  state 
which  is  the  original  proprietor  grants  the  territory  on  one  side  only, 
it  retains  the  river  withiu  its  own  domains,  and  the  newly-erected  state 
extends  to  the  river  only.  In  such  case  the  lower-water  mark  is  its 
boundary,  whether  the  fluctuations  in  the  stream  result  from  tides  or 
from  an  annual  rise  and  fall. 

Handly  v.  Antbouy,  5  Wlieaton,  374. 

Where  a  river  forms  the  boundary  between  two  countries,  and  the 
only  access  to  the  adjacent  territories  is  through  such  river,  the  waters 
of  the  whole  river  must  be  considered  as  common  to  both  nations,  for 
all  jiurposes  of  navigation,  as  a  common  highway.  Hence,  the  mere 
transit  of  a  French  vessel  through  the  waters  of  a  river  which  forms 
the  boundary  between  the  United  States  and  the  territory  of  a  foreign 
state,  for  the  purpose  of  proceeding  to  such  territory,  cannot  be  taken 
to  subject  the  vessel  to  penalties  imposed  by  the  United  States  upon 
French  vessels  for  entering  their  territory. 
The  ApoUon,  9  Wheaton,  362. 

In  a  disputed  boundary  case,  in  which  a  State  was  held  to  have  own- 
ership of  soil  and  jurisdiction  in  the  bed  of  a  river,  the  bed  of  the  river 
was  defined  to  include  "  that  portion  of  its  soil  which  is  alternately  covered 
and  left  hare  as  there  may  he  an  increase  or  diminution  in  the  supply  of 
water,  and  ivhich  is  adequate  to  contain  it  at  its  average  and.  mean  stage 
during  the  entire  year,  ivithout  reference  to  the  extraordinary  freshets 
of  the  winter  or  spring,  or  the  extreme  droughts  of  the  summer  or  au- 
tumn^ 

It  was  also  held  that  in  places  where  the  bank  was  not  defined,  the 
line  must  be  continued  up  the  river  on  the  line  of  its  bed,  as  defined 
above. 

State  of  Alabama  v.  State  of  Georgia,  23  Howard,  505. 

95 


§  ;)().]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

Wlieio  a  liver  is  tlie  boundary  between  two  uatioiiy,  it  continues 
so  notwitlistauding  accretion  and  decretion  of  its  banks;  but  if  it  vio- 
lently leave  its  bed,  the  latter  remaius  the  boundary. 
8  Op.,  17&,  Gushing,  1856. 

Wbcu  a  river  is  in  the  territory  of  a  particular  state,  then  the  i)ablic  control  of 
the  entire  river  and  jurisdiction  of  offenses  committed  on  it,  belong  properly  to  such 
state.  On  this  topic  Holtzeudorff,  Euc.  1223,  cites  Wurm,  Briefe  iiber  die  Freiheit 
der  FlussHchiffahrt,  1858;  Caratheodory,  Du  droit  int.  concernaut  les  grands  cours 
d'eau,  1861;  Engelhard,  Du  regime  conventional  des  fleuves,  1870.  By  the  treaty  of 
Versailles,  of  1783,  by  which  the  independence  of  the  United  States  was  recognized, 
it  was  provided  iu  article  8,  that  *  the  navigation  of  the  river  Mississippi  shall  for- 
ever remain  free  and  ojien  to  the  subjects  of  Great  Britain,  and  the  citizens  of  the 
United  States.'  But  the  United  States  having  purchased  Louisiana,  on  April  30, 1803, 
from  France,  and  Florida  from  Spain,  on  February  22,  1819,  acquired  possession  of 
the  bauks  on  both  sides  of  the  Mississippi,  and  the  treaty  of  Ghent,  of  December  24, 
1814,  no  doubt  for  this  reason,  omitted  all  reference  to  the  rights  of  British  subjects 
to  the  navigation  of  the  river.  Since  then  the  exclusive  control  of  the  river  by  the 
United  States,  so  far  as  concerns  foreign  states,  has  been  conceded  internationally ; 
though,  subject  to  police  supervision  and  to  the  right  to  impose  pilotage  and  quar- 
antine regulations,  the  free  navigation  of  this  and  of  other  navigable  rivers  within 
the  United  States  is,  by  the  law  of  nations,  accepted  by  the  United  States,  open  to  all 
ships  of  foreign  sovereigns.  The  right  freely  to  navigate  the  Saint  Lawrence,  was  for 
many  years  the  subject  of  controversy  between  Great  Britain  and  the  United  States; 
the  United  States  insisting  on  the  right  of  free  passage  over  this  river,  the  lakes  by 
which  it  is  fed  being  in  large  part  bounded  by  the  United  States.  This  right,  how- 
ever, was  resisted  by  Great  Britain.  'It  is  difficult  to  deny,'  says  Sir  R.  Phillimore 
(Phil.  Int.  Law,  3d  ed.,  245),  '  that  Great  Britain  may  have  grounded  her  refusal  upon 
strictlaw  ;  but  it  is  at  least  equally  dilHcult  to  deny,  first,  that  iu  so  doing  she  putin 
force  ail  extreme  and  hard  law  ;  secondly,  that  her  conduct  with  respect  to  the  navi- 
gation of  the  Saint  Lawrence  Avas  inconsistent  with  her  conduct  with  respect  to  the 
navigation  of  the  Mississippi.  On  the  ground  that  she  possessed  a  small  tract  of  domain 
in  which  the  Mississippi  took  its  rise,  she  insisted  on  her  right  to  navigate  the  entire  vol- 
ume of  its  waters ;  on  the  ground  that  she  possessed  both  banks  of  the  Saint  Lawrence 
where  it  disembogued  itself  into  the  sea,  she  denied  to  the  United  States  the  right  to 
navigation,  though  about  one-half  of  the  waters  of  Lakes  Ontario,  Erie,  Huron,  and 
Superior,  and  the  whole  of  Lake  Michigan,  through  which  the  river  flows  were  the 
luoperty  of  the  United  States.'  The  question,  however,  was  settled  with  the  with- 
drawal, in  the  reciprocity  treaty  of  June  5,  1854,  of  the  exclusive  claims  of  Great 
Britain.  This  treaty,  it  is  trae,  ceased  to  exist  on  January  18,  1865,  by  action  of  the 
Government  of  the  United  States,  in  pursuance  of  a  right  leserved  in  this  treaty  ;  but 
the  exclusive  navigation  of  the  river  has  not  since  then  been  insisted  on  by  Great 
Britain."    Whart.  Com.  Am.  Law,  and  see,  also,  Lawrence's  Wheatou,  n.  114,  p.  361. 

As  regulating  rights  to  navigable  rivers,  see  treaties  of  the  United  States  with  Ar- 
gentine Confederation,  10  U.  S.  Stat,  at  L.,  1005  ;  with  Mexico,  ib.,  1031  ;  with  Bolivia, 
12  ib.,  1003  ;  with  Paraguay,  ib.,  1091. 

Mr.  Field  (International  Code,  ^  55)  states  the  rule  as  follows  : 

"A  nation,  and  its  members,  through  the  territories  of  which  runs  a  navigable  river, 
have  the  right  to  navigate  the  river  to  and  from  the  high  seas,  even  though  passing 
through  the  territory  of  another  nation,  subject,  however,  to  the  right  of  the  latter 
nation  to  make  nece.ssary  or  reasonable  police  regulations  for  its  own  peace  and  safety. 
Message  of  President  Grant  to  the  Congress  of  the  United  States,  December,  1870, 
and  treaties  there  cited." 

"  By  the  Roman  law  a  free  passage  is  given  to  ail  parties  over  all  navigable  rivers 
with  the  use  of  the  shore  (jus  littoris)  for  unloading  cargo  and  anchoring  vessels,    (i, 

96 


CHAP.  II.]  RIVERS.  [$  30. 

i-ri,  lust.,  ii,  1.)  Adistinctiou,  however,  was  taken  between  the  sea,  wbieh  was  "  res 
coruinuues"  and  navigable  rivers,  which  were  "  res  publicae."  The  Hame  view  was 
taken  by  Grotius(Lib.  II,  c.  ii,  $  12),  but  the  great  weight  of  authority  since  Vattel 
is  that  the  state  through  which  a  river  Hows  is  to  be  the  sole  judge  of  the  right  of 
foreigners  to  the  use  of  such  river.     Wheat.  Int.  Law,  i,  229;  Vattel,  I,  i,  $292. 

"  On  the  other  hand,  when  the  free  navigation  of  a  river  is  conceded,  this  carries  with 
it  the  right  to  use  the  shores  so  far  as  this  is  necessary  to  the  use  of  the  river.  Phil., 
at  sup.,  i,  225  ;  Wheat.  Hist,  of  Law  of  Nat.,  510."    Whart.  Com.  Am.  Law,  §  191. 

"When  a  navigable  river  forms  the  boundary  between  between  two 
states,  both  are  presumed  to  have  free  use  of  it,  and  the  dividing  line 
will  run  in  the  middle  of  the  channel,  unless  the  contrary  is  shown  by 
long  occupancy  or  agreement  of  the  parties.  If  a  river  changes  its 
bed,  the  line  through  the  old  channel  continues,  but  the  equitable  right 
to  the  free  use  of  the  stream  seems  to  belong,  as  before,  to  the  state 
whose  territory  the  river  has  forsaken. 

"When  a  river  rises' within  the  bounds  of  one  state  and  empties  into 
the  sea  in  another,  international  law  allows  to  the  inhabitants  of  the 
upper  waters  only  a  moral  claim  or  imperfect  right  to  its  navigation. 
We  see  in  this  a  decision  based  on  strict  views  of  territorial  right,  which 
does  not  take  into  account  the  necessities  of  mankind  and  their  desti- 
nation to  hold  intercourse  with  one  another.  When  a  river  aftbrds  to 
an  in  land  state  the  only,  or  the  only  convenient  means  of  access  to  the 
ocean  and  to  the  rest  of  mankind,  its  right  becomes  so  strong,  that  ac- 
cording to  natural  justice  possession  of  territory  ought  to  be  regarded 
as  a  far  inferior  ground  of  right." 

Woolsey,  §  58. 

"  Where  the  entire  upper  portion  of  a  navigable  river  is  included  within 
a  single  state,  the  part  so  inclosed  is  undoubtedly  the  property  of  such 
state.  Where  a  navigable  river  forms  the  boundary  of  conterminous 
states,  the  middle  of  the  channel — the  filum  aquae  or  thalweg— is  gen- 
erally taken  as  the  line  of  their  separation,  the  presumption  of  law  be- 
ing that  the  right  of  navigation  is  common  to  them  both.  But  this 
presumption  may  be  rebutted  or  destroyed  by  actual  ])roof  of  the  ex- 
clusive title  of  one  of  the  riparian  proprietors  to  the  entire  river.  Such 
title  may  have  been  acquired  by  prior  occupancy,  purchase,  cession, 
treaty,  or  any  one  of  the  modes  by  which  other  public  territory  m;iy  be 
acquired.  But  where  the  river  not  only  separates  the  conterminous 
states,  but  also  their  territorial  jurisdictions,  the  thalweg,  or  middle 
current,  forms  the  line  of  se[)aration  through  the  bays  and  estuaries 
through  which  the  waters  of  the  river  How  into  the  sea.  As  a  general 
rule,  this  line  runs  through  the  middle  of  the  deepest  channel,  although 
it  may  divide  the  river  and  its  estuaries  into  two  very  unequal  parts. 
But  the  deeper  channel  may  be  less  suited,  or  totally  uutit,  for  the  pur- 
poses of  navigation,  in  which  case  the  dividing  line  would  be  in  the 
middle  of  the  one  best  suited  and  ordinarily  used  for  that  object.  The 
division  of  the  islands  in  the  river  and  its  bays  would  follow  the  same 
rule." 

1  Hiilleck  Int.  Law  (by  Baker),  146. 

PoiHous  of  the  correspondence  with  Great  Britain  in  1824-'27,  as  to  the  river  St. 

Lawrence,  willbe  found  in  the  British  and  Foreign  State  Papers  for  18:U-'32, 

vol.  19.  :^09. 
For  notices  of  the  free  navigation  of  the  Mississippi,  the  St.  Lawrence,  the 

Plata,  the  Amazon,  the  Scheldt,  the  Congo,  and  the  Niger,  see  Schuyler's 

Am.  Diplomacy,  chapter  vi ;  and  see  also  report  on  free  navigation,  Honse 

Kep.  No.  295,  :^lst  Cong.,  1st  sess. 

S.  Mis.  162— VOL.  I 7  97 


^  30.]  ROVEREKiXTY    (WEK    WATER.  [('II AP.   11 

For  Auk  ricaii  ;iimI  Urifisli  pain-rs  ]>rr;i;irc(l  in  iicudtiations  uf  l*-:-J-J--'-J:i  sec  SciiaU; 
Ex.  L)<)<.-.  Xt).  iWO,  I81I1  (_'i)iit;..'~'<l  ses«.  ;  o  Am.  State  Pap.  (For.  Kel.),  ."1.  :  74. 

As  to  Amazon  Riv.r.  sei;  mt-morial  of  Lieut.  Maury  on  free  navigaliou  of,  House 
(Misc. )  Uof.  No.  2,'.  :\M  Coug.,  l«t  ses8. 

A.s  to  Amoor  River,  and  pai)ers  as  to  explorjitions  of,  see  House  Ex.  Doc.  No.  9«, 
:?;")!  h  Cong.  1st  sess. 

An  article  by  M.  E.  Engelliar(lt,'on  neutrality  in  relation  to  >'tie»ves  inter- 
nation  3,ux  et  aux  cauaux  maritiuies,"  is  given  in  Revue  de  Droit  Int.. 
188(i,  No.  2, 1.")!). 

As  to  admiralty  jurisdiction  over  rivers,  see  wfra,  iS  35a. 

As  to  Congo  River,  see  infra,  6  51. 

By  the  treaty  of  April  9,  1855,  the  Argeutiiie  Eepublic  conceded 
the  free  na\i}]:atioii  of  the  rivers  Parana  and  Uruguay,  such  "  free  navi- 
gation"   *     *     belonging  "to  the  merchant  vessels  of  all  nations." 

By  a  treaty  ol  February  4, 185<)  (prochiimed  March  12, 1800),  the  free 
navigation  oif"  the  Paraguay,  so  far  as  belonging  to  the  Republic  of  Para 
guay,  is  granted  by  Paraguay  to  the  United  States. 

Bolivia,  by  the  treaty  of  May  13.  1858  (proclaimed  January  8,  1883), 
grants  to  the  United  States  similar  privileges  as  to  the  La  Plata  and 
tiie  Amazon. 

As  to  the  Amazon,  whose  waters  How  througli  Peru,  Ecuador,  and 
Bolivia,  the  ibllowing  is  tq  be  observed :  Peru,  by  its  treaty  of  July  26, 
1851,  gives  to  the  United  States,  as  to  the  Amazon,  the  privileges  of  tke 
most  favored  nation,  which  carries  tlie  ])rivileges  of  free  navigation 
granted  by  Peru  to  Brazil.  Ecuador,  in  1853,  decrees  free  navigation 
of  its  rivers,  which  include  the  affluents  of  the  Amazon.  The  same 
I  ights  ar«  granted  by  Bolivia  to  the  United  States  by  the  treaty  of  May 
13,  1858,  above  noticed.    See  ivfra,  §§  40, 157.321. 

"xVs  to  the  Peruvian  tributaries  of  the  Amazon,  a  controversy  arose 
between  the  United  States  and  Peru.  By  the  treaty  between  those 
powers,  of  20th  July,  1851,  it  is  agreed  that  there  sball  be  '  reciprocal 
liberty  of  commerce  and  navigation  between  their  respective  territories,' 
an<l  that  'the  citizens  of  either  may  frequent  with  their  vessels  all  the 
coasts,  ])orts.  and  places  of  the  other  where  foreign  commerce  is  per- 
mitte«l,'  and  shall  have  '  full  liberty  to  trade  in  all  parts  of  the  territories 
of  either' ;  and  each  agrees  '  not  to  grant  any  favor,  privilege,  or  immu- 
nity whatever,  in  matters  of  commerce  and  navigation,  to  other  nations 
which  sliitll  not  be  immediately  extended  to  the  citizens  of  the  other 
contia(;tiug  party.'  On  the  23d  October  following,  Peru  made  a  treaty 
with  Brazil  to  regidatethe  navigation  of  the  Amazon  and  its  tributaries, 
in  which  it  is  agreed  that  vessels  of  either  country,  passing  to  or  from 
portions  of  the  other  on  that  river  or  its  tributaries,  shall  be  subject  only 
to  reciprocal  duties,  such  as  either  nation  lays  on  its  own  products. 
The  United  States  contended  that  this  treaty  came  within  the  operation 
of  the  leciprocal  clause  of  the  treaty  of  the  20th  July,  1851,  and  gave 
to  our  commerce  ihe  same  right  in  the  I^eruvian  tributaries  of  the 
Amazon  witli  Brazilian  commerce.'' 
Dana's  Whenton,  >;  205,  note  11"^. 

By  a  decree  taking  effect  September  7,  1867,  Brazil  opened  the  Am- 
azon to  foreign  commerce,  and  the  same  course  was  taken  by  Peru,  on 
December  17.  180S.     ////>•«,  §  157. 

•'  By  the  treaty  of  December  30,  1853,  between  the  United  States  and 
Mexico,  navigation  is  made  free  to  vessels  of  the  United  States  to 
and  from  their  own  territory,  through  the  Colorado  and  the  Gulf  of 
California,  and  through  the  Mexican  part  of  the  Eio  Grande  below  lati- 
tude 31°  47'  30"." 

Dana's  "Wheaton,  j  205.  note  118. 
98 


CHAP.  II.]  LAKES.  [§31. 

The  Con<j,u'ss  of  Vicniui  of  1815,  in  a  large  lueasiiie  iiiHler  the  iullii- 
ence  of  lUiioii  Uiuuboklt,  laid  down  the  followiii<;-  riile.s: 

(1)  NaviijatioTi  for  the  juirpo.se  of  trade  is  not  to  be  interdicted  to  any 
person  on  snch  navigable  waters  as  traverse  the  territory  of  several  states, 
this  being  conditioned  on  their  conformity  to  local  police  regulations. 

(2)  Tarifis  for  this  purpose  are  to  be  established  on  a  uniform  and 
permanent  ba.sis  (fa^on  uniforme  et  invariable)  and  in  such  a  way  as 
not  to  prevent  trade. 

(3)  The  rights  of  "  ancrage,"  of  "  uolis,"  and  of  "  relache  forc^e,"  etc., 
to  be  abolished. 

(4)  Each  state  will  undertake  such  works  as  are  useful  in  improving 
navigation. 

(o)  '"Bureaux  de  perception  "  to  be  confined  to  sucb  action  as  is  strictly 
necessary. 

(6)  P^rontier  customs  offices  are  to  be  so  conducted  as  not  unnecessa- 
rily to  impede  navigation. 

The  vagueness  of  these  rules  has  led  to  many  questions,  which  have 
been  more  or  less  solved  by  conventions  between  the  parties  in  interest. 

2  Fiore,  Droit  lut.  (2cl  ed.,  l.^S'i,  trauslated  by  Antoiue),  ^3  'til.  Fiore  proceeds 
to  discuss  in  luiicli  detail  the  geueral  rules  of  internatioual  law  iu  respect 
to  navigable  rivers. 

YL— LAKES  AND  INLAND  SEAS. 

§   31. 

The  right  and  title  to  the  shores  of  the  Great  Lakes  is  in  the  sev- 
eral States,  and  not  in  the  United  States. 

6  Op.,  172,  Cashing,  1853. 

As  to  conventions  with  Great  Britain  in  respect  to  the  great  North  American 

lakes,  see  infra.  C*  150. 

An  inland  sea  or  lake  belongs  to  the  state  in  which  it  is  territorially 
situated.  As  illustrations  may  be  mentioned  the  inland  lakes,  whose 
entire  body  is  within  the  United  States,  and  the  Sea  of  Azov.  Those 
portions  of  the  sea  which  are  bounded  by  several  European  states 
were  at  one  time  claimed  to  belong  in  common  to  the  states  by  which 
they  are  bounded  ;  but  this  claim  is  not  now  allowed.  The  fact  that 
both  shores  of  an  arm  of  the  sea,  as  in  the  case  with  Magellan's  Straits, 
have,  subsequent  to  its  adoi)tion  as  a  public  highwaj',  been  under  the 
possession  of  a  single  power,  does  not  change  its  public  character. 
]Sror,  it  is  now  fin.dly  settled,  can  a  strait  which  sei>arates  two  or  more 
countries  (e.  r/.,  the  British  Channel  or  the  Sound)  be  placed  under 
their  joint  control,  so  as  to  ])ut  other  countries  at  a  disadvantage.  A 
distinctive  rule  has  been  adopted  in  reference  to  the  Dardanelles  and 
the  Bos])horus,  which,  even  in  times  of  peace,  are  closed  to  the  ships 
of  war  of  all  European  nations,  a  rule  only  deviated  from  in  cases  of 
peculiar  courte.sy.  Since  1871,  the  merchant  ships  of  all  nations  have 
equal  rights  on  the  Black  Sea. 

Whart.  Com.  Am.  Law,  vS  192:  Woolsey,  v^  .'>7 :  and  see,  also,  Holtzendorff',  Enc. 
1222,  referring  to  Twiss's  "  Territorial  Waters  "'  iu  the  Nautical  Magazine, 
1878;  Stork,  .Jnrisdiktlon  in  Kiistengewiisseru. 

Under  the  treaty  of  Paris  of  18.56,  the  Black  ?>fa  is  neutralized,  and  by  a  sub- 
sequent convention  Russia  and  Turkey  limited  their  naval  force  on  the 
Black  Sea.  By  a  treaty  of  March  l:?,  l-^Tl.  it  is  provided  that  "the  Black 
Sea  remains  o])en,  as  heretofore,  to  the  mercantile  marine  of  all  nations." 
For  a  speciiication  of  treaties  referring  to  Turkey  and  the  Black  Sea,  see 
Phill.,  op.  cif.,  '295  ff.     As  to  neutralization  see  infra.  ^  40. 

As  to  the  North  American  lakes  in  respect  to  treaty  limitations,  see  Infra,  ^  40. 

99 


^  32.]  SOVEREIGNTY    OVER    WATER.  [CHAP.    II. 

VII.  MARGINAL  I'.EI.T  OF  SEA. 
§   32. 

"  The  greatest  distance  to  which  any  respectable  assent  among  na- 
tions has  been  at  anj"  time  given,  has  been  the  extent  of  the  human 
sight,  estimated  at  upwards  of  twenty  miles,  and  the  smallest  distance, 
I  believe,  claimed  by  any  nation  whatever,  is  the  utmost  range  of  a  can- 
non hall,  usually  stated  at  ope  sea  league.  *  *  *  The  character  of 
our  coast,  remarkable  in  considerable  parts  of  it  for  admitting  no  ves- 
sels of  size  to  i)ass  near  the  shores,  would  entitle  us,  in  reason,  to  as 
broad  a  margin  of  protected  navigation  as  any  nation  whatever." 

Mr.  JeflfersoD,  Sec.  of  State,  to  Mr.  Genet,  Nov.  8,  179.3.     MSS.  Notes,  For.  Leg ; 
1  Am.  State  Pap.  (For.  Eel.),  183  ;  1  Wait's  Am.  St.  Pap.,  195. 

The  limit  of  one  sea  league  from  shore  is  provisionally  adopted  as 
that  of  the  territorial  sea  of  the  United  States. 

Mr.  Jefferson,  Sec.  of  State,  to   the  Minister  of  Great  Britain,  Nov.  8,  1793. 

MSS.  Notes,  For.  Leg.     (See,  also,  letter  to  District  Attorneys,  Nov.  10, 

1793.     MSS.  Dom.  Let.) 
As  to  lines  between  head  lands,  see  supra,  §$27, 28 ;  as  to  bays,  supra,  6  28. 

"  Our  jurisdiction  has  been  fixed  (at  least  for  the  purpose  of  regulat- 
ing the  conduct  of  the  Government  in  regard  to  any  events  arising  out  of 
the  repsent  European  war)  to  extend  three  geographical  miles  (or  nearly 
three  and  a  half  English  miles)  from  our  shores,  with  the  exception  of 
any  waters  or  bays  which  are  so  land-locked  as  to  be  unquestionably 
within  the  jurisdiction  of  the  United  States,  be  their  extent  what  they 
may." 

Mr.  Pickering,  Sec.  of  State,  to  Gov.  of  Va.,  Sept.  2,  1796.     MSS.  Dom.  Let. 

"  The  President  (Mr.  Jefferson,  in  an  informal  conversation)  men- 
tioned a  late  act  of  hostility  committed  by  a  French  privateer  near 
Charleston,  S.  C,  and  said  we  ought  to  assume,  as  a  principle,  that  the 
neutrality  of  our  territory  should  extend  to  the  Gulf  Stream,  which  was 
a  natural  boundary,  and  within  which  we  ought  not  to  suffer  any  hos- 
tility to  be  committed,  3Ir.  Gaillard  observed  that  on  a  former  occasion 
hi  Mr.  Jefferson's  correspondence  with  Genet,  and  by  an  act  of  Congress 
at  that  period,  we  had  seemed  only  to  claim  the  usual  distance  of  three 
miles  from  the  coast ;  but  the  President  replied  that  he  had  then  assumed 
that  principle  because  Genet,  by  his  intem])erance,  forced  us  to  fix  on 
some  point,  and  we  were  not  then  jDrepared  to  assert  the  claim  of  juris- 
diction to  tlie  extent  we  are  in  reason  entitled  to  :  but  he  had  taken  care 
to  reserve  this  subject  for  future  consideration  with  a  view  to  this  same 
doctrine  for  which  he  now  contends." 

1  J.  Q.  Adams's  Mem.,  376-7. 

"  There  could  surely  be  no  pretext  for  allowing  less  than  a  marine 

league  from  the  shore,  that  being  the  narrowest  allowance  found  in  any 

authorities  on  the  law  of  nations.     If  any  nation  can  fairly  claim  a 

greater  extent  the  United  States  have  pleas  which  cannot  be  rejected; 

100 


CHAP.    II.]  MARINE    BELT.  [§  32. 

and  if  any  nation  is  more  particularly  bound  by  its  own  example  not  to 
control  our  claim,  Great  Britain  must  be  so  by  the  extent  of  her  own 
claims  to  jurisdiction  on  the  seas  which  surround  her.  It  is  hoped,  at 
least,  that  within  the  extent  of  one  league  you  will  be  able  to  obtain  an 
effectual  prohibition  of  British  ships  of  war  from  repeating:  the  irregu- 
larities which  have  so  much  vexed  our  commerce  and  provoked  the 
public  resentment,  and  against  which  an  article  in  your  instructions 
emphatically  provides.  It  cannot  be  too  earnestly  pressed  on  the 
British  Government  that  in  applying  the  remedy  copied  from  regula- 
tions heretofore  enforced  against  a  violation  of  the  neutral  rights  of 
British  harbors  and  coasts,  nothing  more  will  be  done  than  what  is 
essential  to  the  preservation  of  harmony  between  the  two  nations.  In 
no  case  is  the  temiitation  or  the  facility  greater  to  ships  of  war  for  an- 
noying our  commerce  than  in  their  hovering  on  our  coasts  and  about 
our  harbors;  nor  is  the  national  sensibility  in  any  case  more  justly  or 
more  highly  excited  than  by  such  insults.  The  communications  lately 
made  to  Mr.  Monroe,  with  respect  to  the  conduct  of  British  commanders 
even  within  our  own  waters,  will  strengthen  the  claim  for  such  an 
arrangement  on  this  subject,  and  for  such  new  orders  from  the  British 
Government  as  will  be  a  satisfactory  security  against  future  causes  of 
complaint." 

Mr.  Madison,  Sec.  of  State,  to  Messrs.  Monroe  and  Pinkney,  Feb.  3,  1807.   MSS. 
Instruc.  to  Ministers. 

"The  right  of  a  government  to  seize  a  vessel  within  its  own  jurisdic- 
tion for  an  actual  or  presumed  violation  of  the  laws  and  to  bring  her 
to  a  trial  before  the  competent  tribunal  cannot  be  denied." 

Mr.  Gallatin,  minister  at  Paris,  to  Baron  Pasquier,  minister  of  foreign  affairs, 
June  28,  1821 ;  2  Gallatin's  Writings,  186. 

"A  vessel  on  the  high  seas,  beyond  the  distance  of  a  marine  league 
from  the  shore,  is  regarded  as  part  of  the  territory  of  the  nation  to  which 
she  belongs,  and  subjected  exclusively  to  the  jurisdiction  of  that  nation." 

Mr.  Webster,  Sec.  of  State,  to  Lord  Asbburton,  Aug.  1,  1842;  MSS.  Notes  Gr. 
Brit.  ;  6  Webster's  Works,  306 ;  Whart.  Conf .  of  Laws,  $  356. 

"  The  exclusive  jurisdiction  of  a  nation  extends  to  the  ports,  harbors, 
bays,  mouths  of  rivers,  and  adjacent  parts  of  sea  inclosed  by  headlands, 
and,  also,  to  the  distance  of  a  marine  league,  or  as  far  as  a  cannon  shot 
will  reach  from  the  shore  along  all  its  coasts."  Within  these  limits  the 
sovereign  of  the  mainland  may  arrest,  by  due  process  of  law,  alleged 
offenders  on  board  of  foreign  merchant  ships. 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Jordan,  Jan.  23,  1849.     MSS.  Dom.  Let. 

"This  Government  adheres  to,  recognizes,  and  insists  upon  the  princi- 
I^e  that  the  maritime  jurisdiction  of  any  nation  covers  a  full  marine 
league  from  its  coast,  and  that  acts  of  hostility  or  of  authority  within  a 
marine  league  of  any  foreign  country  by  naval  officers  of  the  United 

lOX 


§  32.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

States  are  strictly  prohibited,  and  will  bring  upon  such  officer  the  dis- 
pleasure of  this  Government." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Welles,  Sec.  of  the  Navy,  Aug.  4,  18G2.  MSS. 
Dora.  Let. 

See,  further,  Mr.  Seward  to  Mr.  Welles,  Oct.  10,  18(52.     Ibid. 

"The  undersigned  would  observ^e,  in  the  first  place,  that  there  are 
two  principles  bearing  on  the  subject  which  are  universally  admitted, 
namely,  first,  that  the  sea  is  open  to  all  nations,  and  secondly,  that 
there  is  a  portion  of  the  sea  adjacent  to  every  nation  over  wliich  the 
sovereignty  of  that  nation  extends  to  the  exclusion  of  ev'ery  other  polit- 
ical authority. 

"  A  third  principle  bearing  on  the  subject  is  also  well  established, 
namely,  that  this  exclusive  sovereignty  of  a  nation,  thus  abridging  the 
nuiversal  liberty  of  the  seas,  extends  no  farther  than  the  power  of  the 
nation  to  maintain  it  by  force,  stationed  on  the  coast,  extends.  This 
principle  is  tersely  expressed  in  the  maxim  Terrce  dominium  Jinitur  ubi 
Unitur  armarum  vis. 

"But  it  must  always  be  a  matter  of  uncertainty  and  dispute  at  what 
point  the  force  of  arms  exerted  on  the  coast  can  actually  reach.  The 
publicists  rather  advanced  towards  than  reached  a  solution  when  they 
laid  down  the  rule  that  the  limit  of  the  force  is  the  range  of  a  cannon- 
ball.  The  range  of  a  cannon-ball  is  shorter  or  longer  according  to  the 
circumstances  of  projection,  and  it  must  be  always  liable  to  cliange  with 
the  improvement  of  the  science  of  ordnance.  Such  uncertainty  upon  a 
point  of  jurisdiction  or  sovereignty  would  be  productive  of  many  and 
endless  controversies  and  conflicts.  A  more  practical  limit  of  national 
jurisdiction  upon  the  high  seas  was  indispensably  necessary,  and  this 
was  found,  as  the  undersigned  thinks,  in  fixing  the  limit  at  three  miles 
from  the  coast.  This  limit  was  early  proposed  by  the  publicists  of  all 
maritime  nations.  While  it  is  not  insisted  that  all  nations  have  accepted 
or  acquiesced  and  bound  themselves  to  abide  by  this  rule  when  applied 
to  themselves,  yet  three  points  involved  in  the  subject  are  insisted  upon 
by  the  United  States:  First,  that  this  limit  has  been  generally  recog- 
nized by  nations ;  second,  that  no  other  general  rule  has  been  accepted ; 
and  third,  that  if  any  state  has  succeeded  in  fixing  for  itself  a  larger 
limit,  this  has  been  done  by  the  exercise  of  maritime  power,  and  consti- 
tutes an  exception  to  the  general  understanding  which  fixes  the  range 
of  a  cannon-shot  (when  it  is  made  the  test  of  jurisdiction)  at  three 
miles.  So  generally  is  this  rule  accepted  that  writers  commonly  u.se  the 
expressions  of  a  range  of  cannon-shot  and  three  miles  as  equivalents  of 
each  other.  In  other  cases  they  use  the  latter  expression  as  a  substi- 
tute for  the  former.  Thus  Wildman,  in  his  '  Plain  directions  to  naval 
officers  as  to  the  law  of  search,  caplure,  and  prize'  (page  12,  ed.  Lon- 
don, 1854),  says:  '  The  capture  of  vessels  within  the  territory  of  a  neutral 
state,  or  within  three  miles  of  the  coast,  *  *  *  is  illegal  with  respect 
to  the  neutral  sovereign.' 
1U2 


CHAP.    II.]  MARINE    BELT.  .  [§  32. 

"Impre^>sed  by  these  general  views,  the  United  States  are  not  pre- 
pared to  admit  that  Spain,  without  a  formal  concurrence  of  other  na- 
tions, can  exercise  exclusive  sovereignty  upon  the  open  sea  beyond  a 
line  of  three  miles  from  the  coast,  so  as  to  deprive  them  of  the  rights 
common  to  all  nations  ui)on  the  open  sea. 

"The  United  States  admit  that  they  have  a  temporary  interest  (dur- 
ing the  present  insurrection)  to  maintain  a  broad  freedom  of  the  seas,  so 
as  to  render  their  naval  operations  as  effective  as  may  be  consistent 
with  the  law  of  nations. 

Mr.  Seward,  Sec.  of  Stati;,  to  Mr.  Tasisaru,  Dec.  Itj,  1662.     MSS.  Notes,  Spain. 

"Nevertheless  it  cannot  be  admitted,  nor  indeed  is  Mr.  Tassara  un- 
derstood to  claim,  that  the  mere  assertion  of  a  sosereign,  by  an  act  of 
legislation,  however  solemn,  can  have  the  etiect  to  establish  and  tix  its 
external  maritime  jurisdiction.  His  right  to  a  jurisdiction  of  three  miles 
is  derived  not  from  his  own  decree  but  from  the  law  of  nations,  and 
exists  even  though  he  may  never  have  ijroclaimed  or  asserted  it  by 
any  decree  or  declaration  whatsoever.  He  cannot,  by  a  mere  decree, 
extend  the  limit  and  fix  it  at  six  miles,  because,  if  he  could,  he  could  in 
the  same  manner,  and  upon  motives  of  interest,  ambition,  or  even  upon 
caprice,  fix  it  at  ten,  or  twenty,  or  fifty  miles,  without  the  consent  or 
acquiescence  of  other  powers  which  have  a  common  right  with  himself 
in  the  freedom  of  all  the  oceans.  Such  a  pretension  could  never  be 
successfully  or  rightfully  maintained.     *     *     * 

"It  results  from  these  remarks,  that  while  it  is  admitted  that  on  the 
part  of  Spain  the  claim  is  not  one  of  new  creation,  it  is  practically 
one  that  has  only  recently  been  presented  to  the  United  States,  and 
for  aught  that  appears  is  entirely  new  to  other  maritime  powers. 

"The  undersigned  is  far  from  intimating  that  these  facts  furnish 
conclusive  reasons  for  denying  the  claim  a  respectful  consideration. 
On  the  contrary,  he  very  cheerfully  proceeds  to  consider  a  farther 
argument,  derived,  as  Mr.  Tassara  supposes,  from  reason  and  justice, 
which  he  has  urged  in  respect  to  the  claim.  This  ground  is,  that  the 
shore  of  Cuba  is,  by  reason  of  its  islets  and  smaller  rocks,  such  as  to 
require  that  the  maritime  jurisdiction  of  Cuba,  in  order  to  purposes  of 
effective  defense  and  police,  should  be  extended  to  the  breadth  of  six 
miles.  The  undersigned  has  examined  what  are  supposed  to  be  ac- 
curate charts  of  the  coast  of  Cuba,  and  if  he  is  not  misled  by  some 
error  of  the  chart,  or  of  the  process  of  examination,  he  has  ascertained 
that  nearly  half  of  tlie  coast  of  Cuba  is  practically  free  from  reefs, 
rocks,  and  keys,  and  that  the  seas  adjacent  to  that  part  of  the  island 
which  includes  the  great  harbors  of  Cabanos,  Havana,  Matanzas,  and 
Santiago  are  very  deep,  while  in  fact  the  greatest  depth  of  the  passage 
between  Cuba  and  Florida  is  found  within  five  miles  of  the  coast  of 
Cuba,  off  the  harbor  of  Havana." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Tassara,  Aug.  10,  1863.     MSS.  Notes,  Spaiu. 

103 


§  32.]  SOVtEEIGNTY    OVER    WATER.  [CHAP.  II. 

'•Spain  claims  a  maritime  jurisdictiou  of  six  miles  around  the  island  of 
Cuba.  In  pressing  this  claim  on  the  consideration  of  the  United 
States,  Spain  has  used  the  argument  that  the  modern  imijrovements 
in  gunnery  render  the  ancient  limit  of  a  marine  league  inadequate  to 
the  security  of  neutral  states. 

"When  it  was  understood  at  Paris  that  an  engagement  was  likely 
to  come  off  before  Cherbourg  between  the  United  States  shij)  of  war 
Kearsarge  and  the  pirate  Alabama,  the  French  Government  remon- 
strated with  both  parties  against  firing  within  the  actual  reach  of  the 
shore  by  cannon-balls  fired  from  their  vessels,  on  the  ground  that  the 
effect  of  a  collision  near  the  coast  would  be  painful  to  France. 

"For  these  reasons  1  think  that  the  subject  may  now  be  profitably 
discussed,  but  there  are  some  preliminary  considerations  which  it  is 
deemed  important  to  submit  to  Her  Majesty's  Government: 

"First.  That  the  United  States,  being  a  belligerent  now,  when  the 
other  maritime  states  are  at  peace,  are  entitled  to  all  the  advantages 
of  the  existing  construction  of  maritime  law,  and  cannot,  without  seri- 
ous inconvenience,  forego  them. 

"Secondly.  That  the  United  States,  adhering  in  war,  no  less  than 
when  they  were  in  the  enjoyment  of  peace,  to  their  traditional  liberality 
towards  neutral  rights,  are  not  unwilling  to  come  to  an  understanding 
upon  the  novel  question  which  has  thus  been  raised  in  consequence  of 
the  improvements  in  gunnery. 

"But,  thirdly,  it  is  manifestly  proper  and  important  that  any  such 
new  construction  of  the  maritime  law  as  Great  Britain  suggests  should 
be  reduced  to  the  form  of  a  precise  proposition,  and  then  that  it  should 
receive,  in  some  manner,  by  treaty  or  otherwise,  reciprocal  and  oblig- 
atory acknowledgments  from  the  principal  maritime  powers. 

"Upon  a  careful  examination  of  the  note  you  have  addressed  to  me, 
the  suggestions  of  Her  Majesty's  Government  seem  to  be  expressed  in 
too  general  terms  to  be  made  the  basis  of  discussion.  Suppose,  by  way 
of  illustration,  that  the  utmost  range  of  cannon  now  is  five  miles,  are  Her 
Majesty's  Government  understood  to  propose  that  the  marine  bound- 
ary of  neutral  jurisdiction,  which  is  now  three  miles  from  the  coast,  shall 
be  extended  ten  miles  beyond  the  present  limit?  Again,  if  cannon- 
shot  are  to  be  fired  so  as  to  fall  not  only  not  upon  neutral  land,  but 
also  not  upon  neutral  waters,  then,  supposing  the  range  of  cannon-shot 
to  be  five  miles,  are  Her  Majesty's  Government  to  be  understood  as 
proposing  that  cannon-shot  shall  not  be  fired  within  a  distance  of  eight 
miles  from  the  neutral  territory? 

"  Finally,  s4jall  measured  distances  be  excluded  altogether  from  the 
statement,  and  the  i)roposition  to  be  agreed  upon  be  left  to  extend 
with  the  increased  range  of  gunnery,  or  shall  there  be  a  pronounced 
limit  of  jurisdiction,  whether  five  miles,  eight  miles,  or  any  other  meas- 
ured limit?" 

Mr.  Seward,  Sec,  oi'  «tato,  to  Mr.  Buruley.  Sej)!.   IG,  1864.     MSS.  Notes,  Gre^t 
Britain. 
104 


CHAP.  II.]  MARINE    BELT.  [§  32. 

"The  iDstruction  from  the  foreign  office  to  Mr.  Watson,  of  the  25th 
of  September  last,  a  copy  of  which  was  communicated  by  that  gentle- 
man to  this  Department,  in  his  note  of  the  17th  of  October,  directs  him 
to  ascertain  the  views  of  this  Government  in  regard  to  the  extent  of 
maritime  jurisdiction  which  can  properly  be  claimed  by  any  power,  and 
whether  we  have  ever  recognized  the  claim  of  Spain  to  a  six-mile  limit 
or  have  ever  protested  against  such  claim. 

"In  reply  I  have  the  honor  to  inform  you  that  this  Government  has 
uniformly,  under  every  administration  which  has  had  occasion  to  con- 
sider the  subject,  objected  to  the  pretension  of  Spain  adverted  to,  upon 
the  same  ground  and  in  similar  terms  to  those  contained  in  the  instruc- 
tion of  the  Earl  of  Derb^. 

"We  have  always  understood  and  asserted  that,  pursuant^©  public 
law,  no  nation  can  rightfully  claim  jurisdiction  at  sea  beyond  a  marine 
league  from  its  coast, 

"  This  opinion  on  our  part  has  sometimes  been  said  to  be  inconsistent 
with  the  facts  that,  by  the  laws  of  the  United  States,  revenue-cutters 
are  authorized  to  board  vessels  anywhere  within  four  leagues  of  their 
coasts,  and  that  by  the  treaty'  of  Guadalupe-Hidalgo,  so  called,  be- 
tween the  United  States  and  Mexico,  of  the  2d  of  February ,  1848,  the 
boundary  line  between  the  dominions  of  the  ijarties  begins  in  the  Gulf 
of  Mexico,  three  leagues  from  land. 

"It  is  believed,  however,  that  in  carrying  into  eftect  the  authority 
conferred  by  the  act  of  Congress  referred  to,  no  vessel  is  boarded,  if 
boarded  at  all,  except  such  a  one  as,  upon  being  hailed,  may  have 
answered  that  she  was  bound  to  a  port  of  the  United  States.  At  all 
events,  although  the  act  of  Congress  was  passed  in  the  infancj-  of  this 
Government,  there  is  no  known  instance  of  any  complaint  on  the  part 
of  a  foreign  Government  of  the  trespass  hj  a  commander  of  a  revenue- 
cutter  upon  the  rights  of  its  flag  under  the  law  of  nations. 

"  In  respect  to  the  provision  in  the  treaty  with  Mexico,  it  may  be  re- 
marked that  it  was  probably  suggested  by  the  passage  in  the  act  of 
Congress  referred  to,  and  designed  for  the  same  purpose,  that  of  pre- 
venting smuggling.  By  turning  to  the  files  of  your  legation,  you  will 
find  that  Mr.  Bankhead,  in  a  note  to  Mr.  Buchanan  of  the  30th  of 
April,  1848,  objected  on  behalf  of  Her  Majesty's  Government,  to  the 
provision  in  question.  Mr.  Buchanan,  however,  replied  in  a  note  of 
the  19th  of  August,  in  that  year,  that  the  stipulation  could  only  affect 
the  rights  of  Mexico  and  the  United  States,  and  was  never  intended  to 
trench  upon  the  rights  of  Great  Britain,  or  of  any  other  power  under 
the  law  of  nations." 

Mr.  Fisb.Sec.  of  State,  to  Six*  Edward  Tliornton,  Jan.  22,  1^75.    MSS.  Notes, 
Great  Britaiu  ;  For.  Rel.,  1875. 

The  following  is  the  section  of  the  Revised  Statutes  referred  to  in  the 

above  note: 

X06 


^\  32.]  SOVEREIGNTY    OVER   WATER.  [CHAP.    II. 

Sec.  27()0.  The  officers  of  the  revenue-cutters  shall  respectively  be 
deemed  officers  of  the  customs,  and  shall  be  subject  to  the  direction  of 
such  collectors  of  the  revenue,  or  other  officers  thereof,  as  from  time  to 
time  shall  be  designated  for  that  purpose.  They  shall  go  on  board  all 
vessels  which  arrive  within  the  United  States  or  within  four  leagues  of 
the  coast  thereof,  if  bound  lor  the  United  States,  and  search  and  examine 
the  same,  and  every  part  thereof,  and  shall  demand,  receive,  and  certify 
the  manifests  required  to  be  on  board  certain  vessels,  shall  affix  and  put 
l)roper  fastenings  on  the  hatches  and  other  communications  with  the 
hold  of  any  vessel,  and  shall  remain  on  board  such  vessels  until  they 
arrive  at  the  port  or  place  of  their  destination. 

As  to  pursuit  by  neutral  of  belligerent  who  has,  in  derogation  of  neutrality, 
fitted  out  a  cruiser  in  such  neutral  port,  see  infra,  ^  396. 

"There  was  reason  to  hope  that  the  practice  which  formerly  prevailed 
with  powerful  nations  of  regarding  seas  and  bays  usually  of  large  ex- 
tent near  their  coast  as  closed  to  any  foreign  commerce  or  fishery  not 
specially  licensed  by  them,  was,  without  exception,  a  pretension  of  the 
past,  and  that  no  nation  would  claim  exemption  from  the  general  rule 
of  public  law  which  limits  its  maritime  jurisdiction  to  a  marine  league 
from  its  coast.  We  should  particularly  regret  if  Russia  should  insist 
on  any  such  pretension." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Boker,  Dec.  1,  1875.     MSS.  Inst.,  Russia. 

An  attack  by  Mexican  officials  ou  merchant  vessels  of  the  United 
Staies,  when  distant  more  than  three  miles  from  the  Mexican  coast,  on 
Ihe  izround  of  breach  of  revenue  laws,  is  an  international  offense,  which 
IS  iM»t  cured  by  adecree  infavorof  the  assailants, collusively  or  corruptly 
maintained  in  a  Mexican  court. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  Apr.  19,  1879.     MSS.  Inst.,  Mex.     Infra, 
^  238,239,  ff. 

"I  have  received  your  No.  108  of  the  29th  of  January  ultimo,  with  its 
accompanying  copy  and  translation  of  the  note  addressed  to  you  on  the 
24th  of  that  month  by  the  minister  of  state,  giving  the  results  of  the 
investigation  ordered  by  the  Spanish  Government  of  the  circumstances 
under  which  the  American  vessels  Ethel  A.  Merritt,  Eunice  P.  New- 
comb,  George  Washington,  and  Hattie  Haskell  were  fired  upon  and 
visited  by  Si)anish  gunboats,  near  the  island  of  Cuba,  in  May,  June, 
and  July  of  last  year. 

"The  tenor  of  that  reply  is  to  contradict  all  the  material  allegations 
of  the  masters  and  officers  of  the  several  vessels  named,  asserting  that 
they  were  in  each  case  nearer  to  the  Cuban  coast  than  appeared  from 
the  statements  made  to  this  Government;  that  the  gunboats  which 
eflected  their  detention  aiid  visitation  acted  in  no  warlike  capacity,  but 
as  simple  guardians  of  the  revenue  interests  of  Spain,  and  that  neither 
in  form  nor  in  spirit  was  there  any  intended  discourtesy  to  the  flag  of 
the  United  Slates. 

*' Immediately  on  ti)e  reeoipt  of  vour  dispatcli  I  addressed  the  repre* 
100 


CHAP.  II.]  MARINE    BELT.  [§  32. 

seutatives  of  each  of  the  vessels  in  questiou,  contrasting  the  complain- 
ants' statements  (which  1  may  observe  were  only  accepted  by  the 
Department  after  the  most  searching  methods  had  been  adopted  to 
arrive  at  the  truth  of  the  facts  according  to  the  admitted  rules  of  evi- 
dence in  such  cases)  with  the  statements  now  presented  in  behalf  of 
the  Spanish  Government,  and  asking  what  corroborative  evidence  of 
the  exactness  of  their  former  affirmations  they  can  now  furnish,  and 
what  reply  they  desire  to  make  to  the  allegation  that  their  vessels  were 
out  of  their  course,  and  so  liable  to  suspicion.  Their  awaited  replies 
will  enable  the  Department  to  better  judge  what  direction  shall  be  given 
to  its  further  action,  and  instructions  to  you  on  the  specific  points  of 
fact  involved  are  necessarily  deferred. 

*'  Meanwhile,  it  seems  proper  that  I  should  briefly  touch  on  certain 
points  of  principle  suggested  by  Seiior  Elduayen's  note.  The  minister 
does  not  appear  to  meet  the  questiou  of  the  jurisdictional  limits  within 
which  the  visitations  were  effected. 

"  The  wide  contradiction  between  the  several  statements  does  not 
suffice  to  bring  the  position  of  three  of  the  vessels  at  the  time  within 
the  customary  nautical  league.  This  Government  must  adhere  to  the 
three-mile  rule  as  the  jurit^dictional  limit,  and  the  casesof  visitation  with- 
out that  line  seem  not  to  be  excused  or  excusable  under  that  rule. 

"This  Government  frankly  and  fully  accepts  the  principle  of  the 
Government  of  His  Majesty  that  any  intention  of  discourtesy  existed 
in  these  proceedings.  It  insists,  however,  on  the  importance  of  a  clear 
understanding  of  the  jurisdictional  limit.  It  insists,  likewise,  on  the 
distinction  between  the  verification  (according  to  the  usual  procedure 
of  revenue  cruisers),  within  a  reasonable  rauge  of  approach,  of  vessels 
seeking  Spanish  ports  in  the  due  pursuit  of  trade  therewith,  and  the 
arrest  by  armed  force,  without  the  jurisdictional  three-mile  limit,  of  ves- 
sels not  bound  to  Spanish  ports.  The  considerations  on  these  heads, 
advanced  in  my  instruction  to  you  of  August  11,  seem  not  to  have  at- 
tracted from  His  Majesty's  Government  the  attention  due  to  their 
precise  bearing  on  at  least  three  of  the  cases  in  hand  under  the  express 
admissions  of  Mr.  Elduayen's  note." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Fairchild,  March  3,  1881.     MSS.  Inst.,  Spain; 
.       For.  Eel.,  1881. 

As  to  liow  far  the  marine  belt  may  be  extended  by  making  its  limits  extend 
from  headland  to  headland,  see  supra,  $  28. 

\ 

"  We  may,  therefore,  regard  it  as  settled  [citing  extracts  from  Pres- 
ident Woolsey,  the  umpire  of  the  London  commission  of  1853,  and  Lord 
Granville,  as  quoted  supra,  §  28],  that  so  far  as  concerns  the  eastern 
coast  of  North  America,  the  position  of  this  Department  has  uniformly 
been  that  the  sovereignty  of  the  shore  does  not,  so  far  as  territorial 
authority  is  concerned,  extend  beyond  three  miles  from  low-water  mark, 
and  that  the  seaward  boundnrv  of  this  zone  of  territorial  waters  follows 
the  coast  of  the  mainland,  extending  wliere  there  are  islands  so  as  to 

107 


§  32.]  SOVEREIGNTY    OVER    WATER.  [CHAP.    II. 

place  round  such  islands  the  same  belt.  This  necessarily  excludes  the 
position  that  the  seaward  boundary  is  to  be  drawn  from  headland  to 
headland,  and  makes  it  follow  closely,  at  a  distance  of  three  miles,  the 
boundary  of  the  sliore  of  the  continent  or  of  adjacent  islands  belonging 
to  the  continental  sovereign. 

"  The  position  I  here  state,  you  must  remember,  was  not  taken  by 
this  Dcjiartment  speculatively.  It  was  advanced  in  periods  when  the 
question  of  peace  or  war  hung  on  the  decision.  When,  during  the  three 
earlier  administrations,  we  were  threatened  on  our  coast  by  Great 
Britain  and  France,  war  being  imminent  with  Great  Britain,  and  lor  a 
time  actually  though  not  formally  engaged  in  with  France,  we  asserted 
this  line  as  determining  the  extent  of  our  territorial  waters.  When  we 
were  involved,  in  the  earlier  part  of  Mr.  Jeflerson's  administration,  in 
difficulties  with  Spain,  we  then  told  Spain  that  we  conceded  to  her,  so 
far  as  concerned  Cuba,  the  same  limit  of  territorial  waters  as  we  claimed 
for  ourselves,  granting  nothing  more ;  and  this  limit  was  afterwards 
reasserted  by  Mr.  Seward  during  the  late  civil  war,  when  there  was 
every  inducement  on  our  part  not  only  to  oblige  Spain  but  to  extend, 
for  our  own  use  as  a  belligerent,  territorial  privileges.  When,  in  1807, 
after  the  outrage  on  the  Chesapeake  by  the  Leopard,  Mr.  Jefferson  is- 
sued a  proclamation  excluding  British  men-of-war  from  our  territorial 
waters,  there  was  the  same  rigor  in  limiting  these  waters  to  three  miles 
from  shore.  And  during  our  various  fishery  negotiations  with  Great 
Britain  we  have  insisted  that  beyond  the  three-mile  line  Britisth  terri- 
torial waters  on  the  northeastern  coast  do  not  extend.  Such  was  our 
position  in  1783,  in  1791,  in  1815,  in  1818.  Such  is  our  position  now  in  our 
pending  controversy  with  Great  Britain  on  this  iaiportaut  issue.  It  is 
true  that  there  are  qualifications  to  this  rule,  but  these  qualifications 
do  not  affect  its  application  to  the  fisheries.  We  do  not,  in  asserting 
this  claim,  deny  the  free  right  of  vessels  of  other  nations  to  pass  on 
peaceful  errands  through  this  zone,  provided  they  do  not,  by  loitering, 
produce  uneasiness  on  the  shore  or  raise  a  suspicion  of  smuggling.  iSTor 
do  we  hereby  waive  the  right  of  the  sovereign  of  the  shore  to  require 
that  armed  vessels,  whose  projectiles,  if  used  for  practice  or  warfare, 
might  strike  the  shore,  should  move  beyond  cannon  range  of  the  shore 
when  engaged  in  artillery  practice  or  in  battle,  as  w  as  insisted  on  by 
the  French  Government  at  the  time  of  the  fight  between  the  Kearsarge 
and  the  Alabama,  in  18G4,  ott'  the  harbor  of'Cherbourg.  We  claim,  also, 
that  the  sovereign  of  the  shore  has  the  right,  on  the  principle  of  self- 
defense,  to  pursue  and  punish  marauders  on  the  sea  to  the  very  extent 
to  which  their  guns  would  carry  their  shot,  and  that  such  sovereign  has 
jurisdiction  over  crimes  committed  by  them  through  such  shot,  although 
at  the  tinie  of  the  shooting  they  were  beyond  three  miles  from  shore.  But 
these  qualifications  do  not  in  any  way  affect  the  principle  I  now  assert,* 
and  which  1  am  asserting  uud  pressing  in  our  present  contention  witU 
108 


CHAP.    II.]  MARINE   BELT.  [§  32. 

Great  Britain  as  to  the  nortlieasteru  fisheries.  From  the  time  wlieii 
European  fishermen  first  visited  tlie  great  fisheries  of  the  northeastern 
Atlantic  these  fislieries,  subject  to  the  territorial  jurisdiction  above 
stated,  have  been  held  opeji  to  all  nations,  and  even  over  the  marine  belt 
of  three  miles  the  jurisdiction  of  the  sovereign  of  the  shore  is  qualitied 
by  those  modifications  which  the  law  of  necessity  has  wrought  into  in- 
ternational law.  Fishing  boats  or  other  vessels  traversing  those  rough 
waters,  have  the  right,  not  merely  of  free  transit  of  which  I  have 
spoken,  but  of  relief,  when  suffering  from  want  of  necessaries,  from  the 
shore.  There  they  may  go  by  the  law  of  nations,  irrespective  of  treaty, 
when  suflering  from  want  of  water  or  of  food  or  even  of  bait,  when 
essential  to  the  pursuit  of  a  trade  which  is  as  precarious  and  as  beset 
with  disasters  as  it  is  beneficent  to  the  population  to  whom  it  supplies 
a  cheap  and  nutritious  food." 

Mr.  Bayard,   Sec.  of  State,  to  Mr.  Manuing,  Sec.  of  Treasury,  May  28,  18H6. 
MSS.  Dom.  Let. 

The  limitation  to  three  miles  of  the  marine  belt  on  the  northeast  At- 
lantic is  based  in  part  on  treaty  and  in  part  on  customary  law  there 
established  as  to  the  fisheries.  It  does  not  of  itself  i>reclude,  as  has 
been  already  seen,  the  sovereign  of  the  shore  from  exercising  police 
jurisdiction  over  any  destructive  agencies  which,  no  matter  at  what 
distance  from  the  shore,  may  inflict  direct  injury  on  the  shore,  or  its 
territorial  waters.     Siipra^  §§  18,  ff^  27 ;  see  infra^  §  303. 

As  to  bays  see  supra  $  28. 
"The  British  'hovering  act,'  passed  in  173G  (9  Geo.  II,  cap.  35), 
assumes,  for  certain  revenue  purposes,  a  jurisdiction  of  four  leagues 
from  the  coasts,  by  prohibiting  foreign  goods  to  be  transshipped  within 
that  distance  without  payment  of  duties.  A  similar  provision  is  con- 
tained in  the  revenue  laws  of  the  United  States,  and  both  these  provis- 
ions have  been  declared  by  jutlicial  authority  in  each  country  to  be  con- 
sistent with  the  law  and  usage  of  nations." 

Mr.  Wheatou  in  Daua's  Wheatou,  §  179. 

In  a  note  to  the  above,  entitled  "  Municipal  seizures  beyond  the  ma- 
rine league  or  cannon-shot,"  Mr.  Dana  says : 

"The  statement  in  the  text  requires  further  consideration.  It  has 
been  seen  that  the  consent  of  nations  extends  the  territory  of  a  state 
to  a  marine  league  or  cannon-shot  from  the  coast.  Acts  done  within 
this  distance  are  within  the  sovereign  authority.  The  war  right  of 
visit  and  search  extends  over  the  whole  sea,  but  it  will  not  be  found 
that  any  consent  of  nations  can  be  shown  in  favor  of  extending  what 
may  be  strictly  called  territoriality,  for  any  purpose  whatever,  beyond 
the  marine  league  or  cannon  shot.  Doubtless  states  have  made  laws 
for  revenue  purposes  touching  acts  done  beyond  territorial  waters,  but 
it  will  not  be  found  that,  in  later  times,  the  right  to  make  seizures  be- 
yond such  waters  has  been  insisted  upon  against  the  remonstrance  of 
foreign  states,  or  that  a  clear  and  unequivocal  judicial  precedent  now 
stands  sustaining  such  seizures  when  the  question  of  jurisdiction  has 
been  presented.  The  revenue  laws  of  the  United  States,  for  instance, 
provide  that  if  a  vessel  bound  to  a  port  in  the  United  States,  shall, 
except  from  necessity,  unload  cargo  within  4  leagues  from  the  coast, 

109 


§  32.]  SOVEREIGNTY    OVER    WATER.  [CHAP.    II. 

aiifl  before  coniini;-  to  the  iiroi)er  ])oit  for  entiy  and  unloading,  and  re- 
ceiving jx'nnission  to  do  so,  the  cargo  is  lorleit,  and  tlic  master  incurs 
a  penalty  (Act  I'd  March,  171>7,  §  '21);  but  the  statute  does  not  authorize 
a  seizure  of  a  foreign  vessel  wIumi  beyond  the  territorial  Jurisdiction. 
The  statute  may  well  be  construed  to  mean  only  that  a  foreign  vessel, 
coming  to  an  American  i)ort,  and  there  seized  for  a  violation  of  revenue 
regulations  committed  oat  of  the  jurisdiction  of  the  United  States  may 
be  contiscated,  but  that,  to  complete  the  forfeiture,  it  is  essential  that 
the  vessel  shall  be  bound  to  and  shall  come  within  the  territory  of  the 
United  States  after  the  prohibited  act.  The  act  done  beyond  the  juris- 
diction is  assumed  to  be  part  of  an  attempt  to  violate  the  revenue  laws 
within  the  jurisdiction.  Under  the  previous  sections  of  that  act  it  is 
made  the  duty  of  revenue  officers  to  board  all  vessels  for  the  purpose 
of  examining  their  papers  within  four  leagues  of  the  coast.  If  foreign 
vessels  have  been  boarded  and  seized  on  the  high  sea,  and  have  been 
adjudged  guilty,  and  their  Governments  have  not  objected,  it  is  prob- 
ably either  because  they  were  not  apj^ealed  to  or  have  acquiesced  in 
the  particular  instance  from  motives  of  comity. 

"The  cases  cited  in  the  authors  note  do  not  necessarily  and  strictly 
sustain  the  position  taken  in  the  text.  In  the  Louis  (Dod^n,  ii,  245), 
the  arrest  was  held  unjustified,  because  made  in  time  of  peace  for  a 
violation  ot  municipal  law  beyond  territorial  waters.  The  words  of  Sir 
William  Scott,  on  pages  245  and  240,  with  reference  to  the  hovering  acts, 
are  only  illustrative  of  the  admitted  rule  that  neighboring  waters  are  ter- 
ritorial ;  and  he  does  not  say,  even  as  an  obiter  dictum,  that  the  territory 
for  revenue  purpo.ses  extends  beyond  that  claimed  for  other  purposes. 
On  the  contrary,  he  says  that  an  inquiry  for  fiscal  or  defensive  purposes, 
near  the  coast,  but  beyond  the  marine  league,  as  under  the  hovering 
laws  of  Great  Britain  and  the  United  States,  'has  nothing  in  common 
with  the  right  of  visitation  and  search  upon  the  unappropriated  parts 
of  the  ocean;'  and  adds,  'a  recent  Swedish  claim  of  examination  on  the 
high  seas,  though  cimfiued  to  foreign  ships  bound  to  Swedish  ports, 
and  accora])anied,  in  a  manner  not  very  consistent  or  intelligible,  with 
a  disclaimer  of  all  right  of  visitation,  was  resisted  by  the  British  Gov- 
ernment, and  was  finally  withdrawn.'  Church  r.  Hubbard  (Cranch,  ii, 
187)  was  an  action  on  a  policy  of  insurance,  in  which  there  was  an  ex- 
ception of  risks  of  illicit  trade  with  the  Portuguese.  The  voyage  was  for 
such  an  illicit  trade,  and  the  vessel,  in  pursuance  of  that  purpose,  came 
to  anchor  within  about  four  leagues  of  the  Portuguese  coast;  and  the 
master  went  on  shore  on  business,  where  he  was  arrested,  and  the  vessel 
was  afterwards  seized  at  her  anchorage  and  condemned.  The  owner 
sought  to  recover  for  the  condemnation.  The  court  held  that  it  was 
not  necessary  tor  the  defendants  to  prove  an  illicit  trade  begun,  but 
only  that  the  risks  excluded  were  incurred  by  the  prosecution  of  such  a 
voyage.  It  is  true,  that  Chief-Justice  Marshall  admitted  the  right  of  a 
nation  to  secure  itself  against  intended  violations  of  its  laws,  by  seizures 
made  within  reasonable  limits,  as  to  which,  he  said,  nations  must  ex- 
ercise comity  and  concession,  and  the  exact  extent  of  which  was  not 
settled;  and, in  thecase  before  the  court,  thefour  leagues  were  not  treated 
as  rendering  the  seizure  illegal.  This  remark  must  now  be  treated  as 
an  unwarranted  admission.  The  result  of  the  decision  is,  that  the  court 
did  not  undertake  to  pronounce  judicially,  in  a  suit  on  a  private  con- 
tract, that  a  seizure  of  an  American  vessel,  made  at  four  leagues,  by  a 
foreign  power,  was  void  and  a  mere  trespass.  In  the  subsequent  case  of 
Rose  V.  Himely  (Cranch,  iv,  241),  where  a  vessel  was  seized  ten  leagues 
110 


CHAP.  II.]  MARINE    BELT.  [§  32. 

from  the  Fieiuth  coast,  mikI  taken  to  a  S])aiiisli  |>oit,  and  comlemiicd  in 
a  Freiicli  tribunal  under  mnnicipal  and  not  belligerent  law,  the  court 
held  that  any  seizures  lor  municipal  puri)oses  beyond  the  territory  of 
the  sovereign  are  invalid;  assinniuf;-,  i)erhaps,  that  ten  leagues  must  Ix' 
beyond  the  territorial  limits  for  all  purposes.  In  Hudson  v.  Guestier 
(Cranch,  iv,  1*!)3),  where  it  was  agreed  that  the  seizure  was  municipal, 
and  was  made  within  a  league  of  the  French  coast,  the  majority  of  the 
court  held  that  the  jurisdiction  to  make  a  decree  of  forfeiture  was  not 
lost  by  the  fact  that  the  vessel  was  never  taken  into  a  F'rcnch  port,  if 
possession  of  her  was  retained,  though  in  a  foreign  port.  The  .judg- 
ment being  set  aside  and  a  new  trial  ordered,  the  case  came  up  again, 
and  is  reported  in  Cranch,  vi,  281.  At  the  new  trial  the  place  of  seiz- 
ure was  disputed;  and  the  judge  instructed  the  jury,  that  a  municipal 
seizure,  made  within  six  leagues  of  the  French  coast,  was  valid,  and 
gave  a  good  title  to  the  defendant.  The  jury  found  a  general  verdict 
for  the  defendant,  and  excei)tions  were  taken  to  the  instructions.  The 
Supreme  Court  sustained  the  verdict;  not,  however,  upon  the  grt>un(l 
that  a  municipal  seizure  made  at  six  leagues  from  the  coast  was  valid, 
but  on  the  ground  that  the  French  decree  of  condemnation  must  be 
considered  as  settling  the  facts  involved ;  and  if  a  seizure  within  a  less 
distance  from  shore  was  necessary  to  jurisdiction,  the  decree  maj"  have 
determined  the  fact  accordingly,  and  the  verdict  in  the  circuit  court 
did  not  disclose  the  opinion  of  the  jury  on  that  point.  The  judges 
differed  in  stating  the  ])rinciple  of  tbis  case  and  of  Rose  v.  Himely,  and 
the  report  leaves  the  difference  somewhat  obscure. 

"This  subject  was  discussed  incidentally  in  the  case  of  the  Cagliari, 
which  was  a  seizure  on  the  high  seas,  not  for  violation  of  revenue  laws, 
but  on  a  claim,  somewhat  mixed,  of  piracy  and  war.  In  the  opinion 
given  by  Dr.  Twiss  to  the  Sardinian  Government  in  that  case,  the 
learned  writer  refers  to  what  has  sometimes  been  treated  as  an  excep- 
tional right  of  search  and  seizure,  for  revenue  purposes,  beyond  the 
marine  league,  and  says  that  no  such  exception  can  be  sustained  as  a 
right.  He  adds:  'In  ordinary  cases,  indeed,  where  a  merchant  ship 
has  been  seized  on  the  high  seas,  the  sovereign  whose  Hag  has  been 
violated  waives  his  privilege,  considering  the  offending  ship  to  have 
acted  with  mala  fide.s  towards  the  other  state  with  which  he  is  in  amity, 
and  to  have  consequently  forfeited  any  just  claim  to  his  protection." 
He  considers  the  revenue  regulations  of  many  states,  authorizing  visit 
and  seizure  beyond  their  waters,  to  be  enforceable  at  the  peril  of  such 
states,  and  to  rest  on  the  express  or  tacit  permission  of  the  states  whose 
vessels  may  be  seized. 

"It  may  be  said  that  the  principle  is  settled  that  municipal  seizures 
cannot  be  made,  for  any  purpose,  beyond  teriitorial  w^aters.  It  is  also 
settled  that  the  limit  of  these  waters  is,  in  the  absence  of  treaty,  the 
marine  league  or  the  cannon-shot." 

But  there  can  be  no  question,  as  has  been  said,  that  there  may  be 
municipal  seizures  of  United  States  vessels,  under  the  United  States 
revenue  laws,  outside  of  the  three-mile  limit. 

Russia  having  asserted,  in  1822-'24,  an  exclusive  jurisdiction  over  the 
northwest  coast  and  waters  of  America  from  Behring  Strait  to  the 
tifty-tirst  degree  of  north  latitude,  this  claim  was  resisted  by  the  United 
States  and  Great  Britain,  and  was  surrendered,  in  a  convention  between 
Russia  and  the  United  States,  in  April.  1824,  for  ten  years  (not  sub- 

ill 


§  32.]  SOVEREIGNTY    OVER    WATER.  [cHAP.    II. 

sequeu(l\  («M-liiii<;ilIy  niu'wcd),  and  in  ii  cioiiveiitioii  between  Great 
Britain  and  llussia.  in  February,  bSlT),  for  ten  years,  re-established  by 
the  treaty  of  June  11,  1843.  The  Itussian  chiim  was  disputed  by  Mr. 
J.  Q.  Adams  in  his  note  to  the  Russian  minister,  of  Mnrch  30,  1822. 

(See  64  An.    Rej^.,  57(5-84  ;  Brit,  and  For.  St.  Pap.,  18'24-'25,  vol.  12,  pp.38,  595; 
AIuIv'h  Kent  (1878),  97.) 

As  to  the  pretensions  of  Russia,  above  stated,  to  control  the  north- 
west Pacitie,  from  Behrinj;'  Strait  to  the  fifty-fourth  degree  of  latitude, 
and  of  the  adjacent  islands,  see  Calvo  Droit  Int.,  3d  ed.,  vol.  3,  323. 

The  ukase  of  Emperor  Alexander  of  Russia,  of  September,  1821, 
daimino-  the  waters  on  the  northwestern  coast  of  America  to  the  ex- 
tent of  one  handled  Italian  miles  from  shore,  is  discussed  in  2  Lyman's 
Diplomacy  of  the  United  States,  chap.  xi. 

This  uiiase  was  the  cause  of  long  discussions  between  Russia,  the 
United  States,  and  Great  Britain ;  discussions  which  terminated  in  a 
treaty  between  the  United  States  and  Russia,  signed  April  17, 1824,  and 
ratified  January  11,  1825.  This  treaty  (now  superseded  in  this  respect) 
contains  the  following  provisions  : 

Article  I. 

It  is  agreed  that,  in  any  part  of  the  Great  Ocean,  commonly  called 
the  Pacific  Ocean,  or  South  Sea,  the  respective  citizens  or  subjects  of 
the  high  contracting  Powers  shall  be  neither  disturbed  nor  restrained, 
either  in  navigation  or  in  fishing,  or  in  the  power  of  resorting  to  the 
coasts,  upon  points  which  may  not  already  have  been  occupied,  for  the 
purpose  of  trading  with  the  natives,  saving  always  the  restrictions  and 
conditions  determined  by  the  following  articles. 

Aeticle  II. 

With  a  view  of  preventing  the  rights  of  navigation  and  of  fishing  ex- 
ercised upon  the  Great  Ocean  by  the  citizens  and  subjects  of  the  high 
contracting  Powers  from  becoming  the  pretext  for  an  illicit  trade,  it  is 
agreed  that  the  citizens  of  the  United  States  shall  not  resort  to  any 
])oint  where  there  is  a  Russian  establishment,  without  the  permission 
of  the  governor  or  commander;  and  that,  reciprocally,  the  subjects  of 
Russia  shall  not  resort,  without  permission,  to  any  establishment  of  the 
United  States  upon  the  Xorthwest  coast. 

Article  III. 

It  is  moreover  agreed  that,  hereafter,  there  shall  not  be  formed  by 
the  citizens  of  the  United  States,  or  under  the  authority  of  the  said 
States,  any  establishment  upon  the  Northwest  coast  of  America,  nor 
in  any  of  the  islands  adjacent,  to  the  north  of  fifty-four  degrees  and 
forry  minutes  of  north  latitude;  and  that,  in  the  same  manner,  there 
shall  be  none  formed  by  Russian  subjects,  or  under  the  authority  of 
Russia,  south  of  the  same  parallel. 

Article  IV. 

It  is,  nevertheless,  understood  that  during  a  term  often  years,  count- 
ing from  the  signature  of  the  present  convention,  the  ships  of  both 
Powers,  or  whicli  belong  to  their  citizens  or  subjects  respectively,  may 
reciprocally  IVeciuent,  without  any  hindrance  whatever,  the  interior  seas, 
gults,  harbors,  and  creeks,  upon  the  coast  mentioned  in  the  preceding 
article,  for  the  purpose  of  fishing  and  trading  with  the  natives  of  the 
country. 

112 


CHAP.   II  ]  MARINK    BELT  \j  '62 

A  It T!  CLE    V. 

All  .spiiituouis  liquors,  lire-arms,  otlier  arms,  powder,  and  muiiitions 
of  war  of  every  kind,  are  always  excepted  from  this  same  coinmerce 
permitted  by  the  preceding  article;  aud  the  two  Powers  engage,  recip- 
rocally, neither  to  sell,  nor  sufier  them  to  be  sold,  to  the  natives  by 
their  respective  citizens  and  subjects,  nor  by  any  person  who  may  be 
under  their  authority.  It  is  likewise  stipulated  that  this  restriction 
shall  never  afiord  a  pretext,  nor  be  advanced,  in  any  case,  to  authorize 
either  search  or  detention  of  the  vessels,  seizure  of  the  merchandize, 
or,  in  tine,  any  measures  of  constraint  whatever  towards  the  merchants 
or  the  crews  who  may  curry  on  this*commerce;  the  high  contracting 
J'owers  reciprocally  reserving  to  themselves  to  determine  upon  the 
penalties  to  be  incurred,  and  to  inflict  the  punishments  in  case  of  the 
contravention  of  this  article  by  their  respective  citizens  or  subjects. 

"This  treaty  excluded  the  right  of  the  United  States  to  make  new 
settlements  on  the  northwest  shore  of  America,  and  the  adjacent  islands 
north  of  54  degrees  40  minutes  of  latitude,  and  of  Russia  to  make  set- 
tlements south  of  that  line.  An  analogous  treaty  was  concluded  in  the 
same  year  between  Great  Britain  and  Eussia.  By  these  treaties  the 
free  navigation  of  the  Pacific  was  recognized.  As  to  oew  settlements, 
they  bound  only  the  contracting  parties." 

Fiore,  Droit  lut.  2cl  ed.  by  Autoine,  1885,  ^  726. 
The  territorial  authority  of  a  nation  extends  over  the  contingiious 
seas,  certainly  within  the  range  of  cannon-shot,  and  perhaps  further, 
according  to  the  nature  of  the  coast. 

Church  V.  Hubbart,  2  Cranch,  187,  235.     (See  the  Ann,  1  Gall.,  62.) 

There  is  no  fixed  rule  prescribing  the  distance  from  the  coast  within 
which  a  nation  can  make  seizures  to  prevent  the  violation  of  its  laws. 
Church  I'.  Hubbart,  2  Crauch,  187,  235. 

"The  territorial  jurisdiction  of  a  nation  over  waters  within  its  juris- 
diction, and  within  the  three-mile  zone  of  the  shore,  does  not  extend  to 
vessels  using  the  ocean  as  a  highway  and  not  bound  to  a  port  of  the  na- 
tion. And  a  vessel  may  pass,  in  its  voyage  along  the  shore  of  another 
nation,  without  subjecting  itself  to  the  law  of  the  littoral  sovereign,  aud 
retain  all  the  rights  given  by  thelawof  its  flag.  This  authority  or  claim 
of  jurisdiction  over  the  ocean  within  the  three-mile  zone  of  the  coast  is 
said  and  shown  by  Lord  Chief-Justice  Cockburu  to  be  a  shrinkage  of 
the  claim  of  jurisdiction  over  the  mare  dauHiim^  which  was  never  ac- 
knowledged, and  is  now  abandoned,  and  to  exist  only  for  the  i)rotec- 
tion  and  defense  of  the  coast  and  its  inhabitants.  Mr.  Webster,  in.his 
tetter  to  Lord  Ashburtou,  quoted  in  Wheaton's  Law  of  Nations,  infm, 
§  38,  says :  '  A  vessel  on  the  high  seas,  beyond  the  distance  of  a  marine 
league  from  the  shore,  is  regarded  as  part  of  the  territory  of  the  nation 
to  which  she  belongs,  and  subjected,  exclusively,  to  the  jurisdiction  of 
that  nation.  If  against  the  will  of  her  master  or  owner  she  be  driven  or 
carried  nearer  to  the  land,  or  even  into  port,  those  who  have,  or  ought  to 
have  control  over  her,  struggling  all  the  while  to  keep  her  upon  the  high 
seas,'  she  remains  '  within  the  exclusive  jurisdiction  of  her  Government.' 
This  was  written  in  the  case  of  the  Creole,  an  American  vessel,  carried 
into  Nassau  by  persons  who  had  been  slaves  in  ^'irginia.  The  same 
reason  which  governs  in  the  case  of  a  vessel  driven  by  weather  or  by 

S.  Mis.  1G2— VOL.  I 8  113 


§32.]  sovKin:r(.'\"i'V  owm  watfi?.  [chap.  it. 

violence  within  Ibc  t  luce  mile  iiuisdictioii.  ;ii)|)li('s  ion  \  csscl  tlie  neces- 
sities of  whose  voyaiic  ••omiiel  her  to  piiss  wifliin  the  smiie  /.one." 

Ifciiry  on  Adiii.  .Fur.  i  is-.')).  \n  •^'.K 

On  the  other  hand,  the  sovereign  of  the  shore  has  a  right,  by  inter- 
national hvw,  to  re(|uire  that  no  action  be  taken  by  ships  of  other  friendly 
nations  by  which  iiis  snbjiH'ts  shonld  be  injnred,  or  the  peace  of  the 
shore  ilistiirbed. 

That  a  sovereign  has  a  police  Jurisdiction  overall  oft'enses  committed 
by  means  of  sliot  from  a  ship  taking  effect  on  shore  is  maintained  by 
very  high  authority.  "The  extension,"  says  Perels  (Das  Internationale 
ofifentlidie  Seerecht  der  (xegenwait,  §  13),  ''of  the  line  depends  on  the 
range  of  cannon  shot  at  the  particular  ]>eriod.  It  is,  however,  at  such 
])eriod  the  same  for  all  coasts.'" 

To  thiseftect  iscitcd  Martens,  Precis  i,  )i.  144  :  Bluntsohli,  v>  302  ;  HeflFter,  $  75: 
Kliiber.  ^  V.W:  Ortolan,  i,  Ib'A.  an<l  Scbialtarella,  P(4  Territorio,  p.  8. 

Mr.  Lawrence  thus  states  the  rule:  "The  waters  adjacent  to  the  coast 
of  a  country  are  deemed  witliin  its  jurisdictional  limits  only  because 
they  can  be  commanded  from  the  shore." 

Lawr.  Wheaton,  84t>. 

According  to  Gessner:  "Les  droits  des  riverains  ont  6t^  augment^s 
par  I'invention  des  canons  rayes." 

As  far  as  a  State  can  protect  itself,  so  far  does  its  jurisdiction  extend. 
Kent,  i,  p.  158. 

"  La  plus  forte  portee  de  canon  selon  le  ])rogres  commun  de  Part  4 
chaque  epoque." 

"Inasmuch  as  cannon-shot  can  now  be  sent  more  than  two  leagues, 
it  seems  desirable  to  extend  the  territorial  limits  accordingly.  The 
ground  of  the  ride  is  the  margin  of  sea  ivithin  reach  of  the  land  forces  or 
from  ivhich  the  land  can  be  assailed.'^'' 

Field  Int.  Code,  2d  ed.,  $  28. 

"It  is  probably  safe  to  say,"  says  Mr.  Hall  (Int.  Law,  127),  "that  a 
state  lias  the  right  to  extend  its  territorial  waters  from  time  to  time  at 
its  will,  with  the  now  increased  range  of  its  guns,  though  it  would  uu- 
doubtedly  be  more  satisfactory  that  an  arrangement  upon  the  subject 
should  be  arrived  at  by  common  consent." 

See  32  Alb.  Law.  Jour.,  104. 

The  rea.son  originally  given  for  the  three-mile  limit  was  that  cannon- 
balls  were,  in  those  days,  not  known  to  exceed  three  miles  in  range,  and 
that  if  the  three-mile  limit  was  secured,  a  sovereign  would  be  fully  able 
to  protect  his  shores  from  marauders,  or  from  belligerent  cannonade 
at  sea  from  which  he,  a  neutral,  might  suffer.  This  position,  as  is 
mentioned  by  Mr.  Seward,  was  taken  by  the  French  Government  at 
the  time  of  the  seaduel  between  the  Kearsarge  and  the  Alabama,  in 
18(J4.  Nor  does  this  reason  apply  exclusively  to  hostile  operations. 
We  can  conceive,  for  instance,  of  a  case  in  which  armed  vessels  of 
nations,  with  whom  we  are  at  peace,  might  select  a  spot  within  cannon- 
range  of  our  coast  for  the  practice  of  their  guns.  A  case  of  this  char- 
acter took  place  not  long  since  in  whi(;h  an  object  on  shore  was  selected 
as  a  point  at  which  to  aim,  for  tlie  purpose  of  practicing,  projectiles  to 
be  thrown  from  the  cruiser  of  a  friendly  power.  Supposing  such  a 
vessel  to  be  four  miles  from  the  coast,  could  it  be  reasonably  maintained 
114 


CHAP.  II.]  SHIP    NATIONALIZED    BY    FLAG.  [§  33. 

that  we  Lave  no  police  jurisdiction  over  such  culj)al)le  negligence  'i  Or 
could  it  be  reasonably  maintained  that  marauders,  who  at  the  same 
time  would  not  be  technically  pirates,  could  throw  projectiles  upon  our 
shores  without  our  having  jurisdiction  to  bring  them  to  justice  ?  The  an- 
swer to  such  questions  may  be  drawn  from  the  reason  that  sustained  a 
claim  for  a  three-mile  police  belt  of  sea  in  old  times.  This  reason  author- 
izes the  extension  of  this  belt  for  police  purposes  to  nine  miles,  if  such 
be  the  range  of  cannon  at  the  present  day.  This,  it  should  be  remem- 
bered, does  not  subject  to  our  domestic  jurisdiction  all  vessels  passing 
witliin  nine  miles  of  our  shores,  nor  does  it  by  itself  give  us  an  exclusive 
right  to  lisheries  within  such  a  limit,  or  within  such  greater  limit  as 
greater  improvements  in  gunnery  might  suggest ;  nor  would  it  authorize 
the  Executive  to  warn  off,  within  these  extended  limits,  foreign  ships  by 
;.v  i)roclamation  similar  to  thai  of  President  Jefferson,  in  1807,  so  as  to 
])i''event  them  from  communicating  with  the  shore.  For  the  latter  pur- 
])Oses  the  three-mile  limit  is  the  utmost  that  can  be  claimed. 

J^y  the  British  territorial  waters  act  of  1878  ''  an  offense  committed 
by  a  person,  whether  he  is  or  is  not  a  subject  of  Her  Majesty,  on  the 
open  sea,  within  the  territorial  waters  of  Her  Majesty's  dominions,  is  an 
offense  within  the  jurisdiction  of  the  admiral,  although  it  may  have 
been  committed  on  board  or  by  means  of  a  toreign  ship;"  and  it  was 
declared  in  (he  preamble  of  the  statute  that  "the  rightful  jurisdiction 
of  Her  Majesty,  her  heirs  and  successors,  extends,  and  has  ahvays  ex- 
tended^ over  the  open  seas  adjacent  to  the  coasts  of  the  United  King- 
dom, and  of  all  other  parts  of  Her  Majesty's  dominions,  to  .such  a  distance 
as  is  necessary  for  the  defense  and  security  of  such  dominions?''  It  is,  how- 
ever, further  provided  that  "the  territorial  waters  of  Her  Majesty's  do- 
minions, in  reference  to  the  sea,  means  such  part  of  the  sea  adjacent  to 
the  coast  of  the  United  Kingdom  or  the  coast  of  some  other  part  of  Her 
Majesty's  dominion,  as  is  deemed,  by  international  laiv  to  be  within  the 
territorial  sovereignty  of  Her  Majesty^  and  for  the  purpose  of  any  offense 
declared  by  this  act  to  be  irithin  the  jurisdiction  of  the  admiral.,  any  part 
of  the  open  sea  iHthin  one  marine  league  of  the  coasts  measiired  from  low- 
icater  marli,  shall  be  deemed  to  be  open  sea  within  the  territorial  ivaters  of 
Her  Majesty's  dominions.'"  This  statute  in  one  place  apparently  makes 
the  test  to  consist  in  the  protection  of  subjects,  in  another  place  falls 
back  on  the  marine  league.  So  far  as  concerns  persons  injured  on 
shore,  the  former  is  on  principle  the  test;  and  it  may  also  be  argued  to 
be  the  test  in  reference  to  belligerent  cruisers  undertaking  to  cannonade 
each  other  within  cannon-shot  of  the  shore.  So  far  as  concerns  injuries 
at  sea,  inflicted  by  a  foreigner  on  a  subject,  the  question  is  still  open. 

See  2  Steph.  Hist.  Cr.  Law,  cb.  xvi ;  Perels,  §  13. 

See,  also,  R.  v.  Keyn,  L.  R.  2  Ex.  D.,  6:5 ;  13  Cox.,  C.  C,  403,  cited  aud  criticized, 

Wbart.  Com.  Am.  Law,  <iS  186;  and  see  3  Phill.  Int.  Law,  3d  ed.,  565;  Whart. 

Conf.  of  Laws,  2d  ed.,  §  818.     See,  also,  more  fnlly  infra  §  35  a. 

VIII.  SHIP  NATIONALIZED  BY  FLAG. 

k  33. 

As  to  impressment,  see  infra,  §  331. 
As  to  ship  papers  and  sea-letters,  see  infra,  $  408. 
As  to  visitation  and  search,  see  infra,  $§  325-7. 
As  to  jurisdiction  over  crimes  at  sea,  see  infra,  §  41. 

"  Every  merchant  vessel  on  the  seas  is  rightfully  considered  as  part 
of  the  territory  of  the  country  to  which  it  belongs.  The  entry,  there- 
fore, into  such  vessel,  being  neutral,  by  a  belligerent,  is  an  act  of  force, 

115 


§  33.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  11. 

unci  ia  prima  Jav it  a  wioiij'',  a  trespas.s,  Miii<ili  cau  be  jvistitied  only  whon 
(lone  for  some  pnr])ose  allowed  to  lorin  a  sufficient  justilication  by  the 
law  of  niitioiis.  lint  a  IJritisli  cruiser  enters  an  American  merchant 
vessel  in  order  to  take  therefrom  sujjposed  British  subjects,  offering  no 
Justification  therefor,  nnder  the  law  of  nations,  but  claiming-  the  right 
under  the  law  of  England  respecting  the  King's  prerogative.  This  can- 
not be  defended.  Ii^nglish  soil,  English  territory,  English  jurisdiction, 
is  the  appropriate  sphere  for  the  operation  of  English  law.  The  ocean 
is  the  sphere  of  the  law  of  nations,  and  any  merchant  vessel  on  the  seas 
is,  by  that  law,  under  the  protection  of  the  laws  of  her  own  nation,  and 
may  claim  immunity  unless  in  cases  in  which  that  law  allows  her  to  be 
entered  or  visited." 

Mr.  Webster,  Sec.  of  State,  to  Lord  Asbburton,  Aug.  8,  1842.  MSS.  Notes,  Great 
Britain;  6  Webster's  Works,  317.  For  other  portions  of  this  letter,  seew/ra, 
§  331. 

"  In  the  letter  of  Mr.  Webster  to  Lord  Ashburton,  of  the  1st  August, 
1842,  the  principles  of  the  law  of  nations  which  apply  to  the  subject 
were  discussed  with  great  clearness  and  ability.  To  that  letter  I  refer 
you.  It  will  be  perceived  that  Mr.  Webster  does  not  '  propose  the  intro. 
duction  of  any  new  principle  into  the  law  of  nations.'  He  contends 
that  '  a  vessel  on  the  high  seas,  beyond  the  distance  of  a  marine  league 
from  the  shore,  is  regarded  as  part  of  the  territory  of  the  nation  to 
which  she  belongs,  and  subjected  exclusively  to  the  jurisdiction  of  that 
nation ;  and  consequently,  if  those  who  have  charge  of  her  endeavor,  in 
good  faith,  to  keep  her  at  sea,  that  is,  within  that  exclusive  jurisdiction, 
and  if,  contrary-  to  their  will,  she  be  forced  within  another  jurisdiction 
by  stress  of  weather,  by  violence,  or  other  necessity,  she  does  not  cease 
to  be  within  the  jurisdiction  of  her  own  country.  In  this  case,  however, 
such  jurisdiction  is  not  exclusive  to  all  purposes.  'For  any  unlawful 
acts  done  by  her  while  thus  lying  in  port,  and  for  all  contracts  entered 
into  while  there,  by  her  master  and  owners,  she  and  they  must  doubt- 
less be  answerable  to  the  laws  of  the  place.' 

"  Mr.  Webster  further  contends  that  '  by  the  comity  of  the  law  of 
nations,  and  the  practice  of  modern  times,  merchant  vessels  entering 
<>l)en  ])orts  of  other  nations  for  the  purpose  of  trade,  are  presumed"  to 
be  allowed  to  bring  with  them  and  to  retain,  for  their  protection  and 
government,  the  jurisdiction  and  laws  of  their  own  country.'  These,  of 
course,  extend  both  over  persons  and  things,  subject  always  to  the  laws 
of  the  place,  in  cases  of  crimes,  contracts,  «&c.,  as  above  mentioned.  The 
right  here  claimed  is  not  in  derogation  of  the  sovereignty  of  the  place 
where  the  vessels  may  be,  but  is  presumed  to  be  allowed  by  that  sov- 
ereignty." 

Mr.  Upshur,  Sec.  of  State,  to  Mr.  Everett,  Nov.  28,  1843.  MSS.  Inst.,  Great 
Britain. 

"  I  claim  a  total  immunity  for  the  vessels  of  the  United  States  '  upon 
the  common  and  unappropriated  parts  of  the  ocean,'  to  use  the  expres- 
sion of  Lord  Stowell,  in  time  of  peace,  under  all  circumstances.  '  There 
116 


CHAP.  II.]  SHIP    NATIONALIZED    BY    FLAG.  [§  33. 

is  no  case  iu  which  a  forcible-  entrance  into  them  can  be  justified  by 
another  power  ;  that  is,  there  is  no  case  in  which  such  entry  is  a  lawful 
act.  It  maj"  be  an  excusable  one  under  peculiar  circumstances,  of  en- 
trance and  of  conduct,  whi(!h  might  well  induce  the  aggrieved  party  to 
renounce  all  claim  for  reparation.  As,  for  instance,  if  a  piratical  ves- 
sel were  known  to  be  cruising  in  certain  latitudes,  and  a  national  armed 
ship  should  fall  in  with  a  vessel  sailing  in  those  regions,  and  answering 
to  the  description  given  of  the  pirate,  the  visitation  of  a  peaceable 
merchantman  in  such  case,  with  a  view  to  ascertain  her  true  character, 
could  give  no  reasonable  cause  of  offense  to  the  nation  to  which  she 
might  belong,  and  whose  flag  she  carried." 

I'.Ir.  CiLss,  Sec.  of  State,  to  Mr.  Osnua,  May  22, 1858.  MSS.  Notes,  Peru.    (See  infra, 
^  327.) 

"'  The  jurisdiction  of  every  independent  nation  over  the  merchant  ves- 
sels of  other  nations  lying  within  its  own  harbors  is  absolute  and  ex- 
clusive. Nothing  but  its  authority  can  justify  a  ship  of  war  belonging 
to  another  nation  in  seizing  or  detaining  a  vessel  thus  situated  for  any 
cause  or  ])retext  whatever.  *  *  *  There  is  no  power  on  earth  which 
would  ftssert  this  principle  with  more  determination  and  energy  than 
the  United  States,  and,  therefore,  there  is  no  power  which  ought  more 
carefully  to  avoid  any  violation  of  it  in  their  conduct  towards  other 
nations." 

Mr.  Biichauan,  Sec.  of  State,  to  Mr.  Wise,  Sept.  27,  1845.     MSS.  lust.,  Brazil. 

"Referring  to  the  case  of  Albert  Allen  Gardner,  master  of  the 
American  ship  Anna  Camp,  tried  in  the  county  court  at  Liverpool,  in 
May  last,  cojjies  of  certain  papers  relating  to  which  were  forwarded  to 
you  by  General  Badeau,  I  desire  to  call  your  attention  to  the  claim  of 
jurisdiction  put  forth  by  the  local  common-law  courts  of  Great  Britain 
in  this  and  other  similar  cases. 

"  It  seems  to  be  claimed  by  the  courts  in  question  that  their  jurisdic- 
tion extends  to  the  hearing  and  determining  of  causes  arising  upon 
complaints  between  masters  and  mariners  of  vessels  of  the  United 
States,  not  only  when  the  occurrences  upon  which  the  complaint  may 
be  iounded  took  place  within  British  i)orts  or  waters,  but  also  when  the 
offense  which  is  made  the  ground  of  action  was  committed  on  board 
the  vessel  on  the  high  seas. 

"The  exercise  of  this  jurisdiction  by  the  local  common-law  courts  at 
Liverpool  has  already  been  the  cause  of  much  annoyance  and,  in  some 
instances,  serious  inconvenience  to  masters  and  owners  of  American 
vessels,  and  if  i)ersisted  in  may  aiiect  injuriously  the  interests  of  Amer- 
ican shipping. 

'^  The  coLirUs  o;'  the  United  St;ites,  even  those  ])ossessing  admiralty 
jurisdicrion,  have  repciitedly  declined  to  take  cognizance  of  cases  of 
this  nature  when  the  parties  to  tlie  action  were  seamen  and  masters  of 
foreign  vessels.  The  reasons  assigned  by  the  courts  of  the  United 
States  for  refusing  to  entertain  jurisdiction  of  such  cases  are  believed 

117 


§  33.]  SOVEREIGNTY    OVER   WATER.  [CHAP.  II. 

to  be  ia  accord  with  the  general  practice  of  other  maritime  powers,  and 
supported  by  the  principles  of  international  maritime  law,  as  under- 
stood and  interpreted  by  the  highest  judicial  authority  of  maritime 
nations. 

"In  a  case  of  controversy  between  the  crew  and  the  master  of  the 
British  ship  Keliance,  sought  to  be  prosecuted  before  the  district  court 
of  the  United  States  in  the  city  of  New  York,  the  master  and  crew  in 
question  being  British  subjects,  the  court,  in  declining  to  entertain  the 
case,  says :  '  The  admiralty  courts  of  the  United  States  will  decline 
jurisdiction  of  controversies  arising  between  foreign  masters  and  own- 
ers unless  the  voyage  has  been  broken  up  or  the  seamen  unlawfully 
discharged.  It  is  expected,'  continues  the  same  judge,  'that  a  foreign 
seaman  seeking  to  prosecute  an  action  of  this  description  in  the  courts 
of  this  country  will  procure  the  ofiflcial  sanction  of  the  commercial  or 
political  re])reseutative  of  the  country  to  which  he  belongs,  or  that 
good  reasons  will  be  shown  for  allowing  his  suit  in  the  absence  of  such 
refusal.  This  court,'  adds  the  learned  judge,  'has  repeatedly  discoun- 
tenanced actions  by  foreign  seamen  against  foreign  vessels  not  termi- 
nating their  voyages  at  this  port  as  being  calculated  to  embarrass  com- 
mercial transactions  and  relations  between  this  country  and  others  in 
friendly  relations  with  it.' 

"The  justice  and  wisdom  of  those  observations  of  the  court  will  be  at 
once  obvious.  The  laws  of  the  United  States,  and  the  instructions  of 
this  Department  to  its  consular  officers  resident  in  foreign  countries, 
provide  with  more  than  ordinary  care  for  the  adjustment  of  all  ques- 
tions of  controverts^^  which  may  arise  between  the  masters  and  crews  of 
American  vessels  growing  out  of  the  relations  of  such  masters  and 
seamen  on  board  the  vessels  while  on  the  bigh  seas  or  in  the  ports 
of  foreign  powers ;  and  where  offenses  are  committed  by  either  mas- 
ter or  mariner,  or  other  questions  of  dispute  between  them  arise  which 
are  beyond  the  province  of  the  consul  to  determine,  ample  i)rovision  is 
made  by  law  for  the  trial  and  i)unishment  of  such  oflenses  liud  the  set- 
tlement of  those  questions  by  the  courts  of  the  United  States.  These 
provisions  of  the  law  and  consular  regulations  of  this  country  are  be- 
lieved, moreovi'r,  to  be  in  general  harmony  with  existing  laws  and  reg- 
latJons  of  Great  Britain  on  this  suliject. 

"This  Department,  as  you  are  aware,  has  repeatedly  brought  to  the 
attention  of  Her  Majesty's  Government  the  necessity  of  a  consular 
convention  between  the  two  countries,  the  existence  of  which  would 
do  much  to  obviate  in  future  occurrences  such  as  that  now  com- 
plained of.  It  is  not  designed  in  this  connection  to  renew  any  dis- 
eussioM  of  that  subject  now,  as  you  are  fully  informed  that  this  Gov- 
I'rnment  is  now,  as  it  has  been  heretofore,  ready  to  enter  into  a 
couveutioii  on  that  subjec'. 

"  You  will  avail  yourself  of  the  earliest  opportunity  to  bring  the 
question  involved  in  the  case  of  Captain  Gardner  to  the  attention  of 
118 


CHAP.  II.]  SHIP    NATIONALIZED    BY    FLAG.  [§  33. 

Uer  iMaJesty's  Government,  with  the  expression  of  the  hope  indulged 
bj'  the  Government  of  the  United  States  that  measures  will  be  adoi)ted 
to  prevent  in  future  the  exercise  of  jurisdiction  by  the  local  common- 
law  courts  of  Great  Britain  in  controversies  arising  between  the  mas- 
ters and  seamen  of  vessels  of  the  United  States  growing  out  of  occur- 
rences on  board  their  vessels  on  the  high  seas." 

Mr.  Fish,  Sec,   of  State,  to  Mr.  Schenck,  Nov.  8,  1873.      MSS.  lust.,  Great 
Britain. 

"  Keferring  to  my  instruction  of  the  8th  of  November,  1873  (No. 
470),  in  relation  to  jurisdiction  assumed  by  the  local  common-law  courts 
of  Great  Britain,  in  cases  of  disputes  arising  between  the  masters  and 
crews  of  merchant  vessels  of  the  United  States,  I  now  transmit  to  you 
a  coj)y  of  a  dispatch  recentl}"  received  by  the  Department  from  the 
United  States  vice-consul  at  Hong-Kong,  together  with  a  copy  of  its 
inclosures,  relating  to  a  case  between  Joseph  D.  Ellis,  the  steward  of 
the  American  ship  Lathley  Rich,  and  Thomas  Mitchell,  the  master 
of  that  vessel,  in  which  the  jurisdiction  comi)lained  of  was  assumed 
and  exercised  by  the  local  courts  of  that  colony.  Complaints  have  also 
recently  reached  the  Department  from  Melbourne  and  Singapore  of  a 
similar  assumption  of  jurisdiction  by  the  local  courts  of  these  colonies. 

"The  laws  of  the  United  States  make  ample  provision  for  the  regula- 
tion and  protection  of  the  seamen  of  the  United  States,  and  for  the  set- 
tlement of  all  disputes  which  may  arise  between  the  masters  and  crews 
of  American  vessels  before  the  consuls  of  the  United  States  resident  in 
the  ports  of  foreign  countries,  carefully  reserving,  at  the  same  time,  to 
the  i)arties  all  the  rights  and  remedies  that  are  secured  to  them  bylaw 
through  the  courts  of  the  United  States. 

"Regulations  similar  in  character  for  the  government  and  police  of . 
their  merchant  marine  are  established  by  the  Government  of  Great 
Britain,  and,  indeed,  by  the  Governments  of  most,  if  not  all,  commercial 
nations,  and  this  Government  has  never  failed  to  recognize  the  effect- 
ive beneficence  of  such  domestic  regulations  in  promoting  discipline, 
order,  and  good  government  on  vessels  engaged  in  the  merchant  serv- 
ice. They  rest  upon  principles  of  convenience,  international  comity, 
and  well-settled  rules  of  public  law.  The  claim  of  jurisdiction  made  by 
the  local  common-law  courts  of  Great  Britain,  and  particularly  by  the 
colonial  tribunals,  is  conceived  to  be  in  contravention  of  those  prin- 
ciples ;  and  the  exercise  of  it,  moreover,  calculated  to  work  serious  in- 
jury to  the  commerce  of  the  United  States  in  tliose  i)orts  where  it  ob- 
tains, and  to  the  interests  of  the  vessels  which,  from  time  to  time,  be- 
come the  sul)iects  of  su(;h  unauthorized  interference. 

"Acting  in  the  spirit  of  these  views,  this  Government  has  on  several 
occasions,  when  interference  of  a  similar  character  by  local  courts  or 
magistrates  of  this  country,  in  the  case  of  i:>ritish  vessels,  has  been 
brought  to  its  notice  by  Her  Majesty's  Government,  i>romptly  made 
such  complaints  the  subject  of  in(]uiry  and  correction. 

119 


§  33.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

"On  the  llKli  of  Februaiw ,  1873,  Her  Majesty's  minister  at  this  capital 
brought  to  the  attention  of  the  Department  a  case,  occurring  at  Galves- 
ton, Texas,  in  which  the  master  of  the  British  ship  Bucephalus  had 
been  arraigned  before  a  local  State  magistrate,  who  happened,  also,  to 
be  a  United  States  commissioner,  upon  the  complaint  of  one  Thomas 
Moffit,  a  seaman  of  that  vessel,  for  an  alleged  assault,  commenced  while 
the  ship  was  at  sea  and  continued  after  her  arrival  at  that  i)ort.  The 
case  was  referred  by  this  Department  to  the  Attorney  General,  and  that 
officer  instituted  an  immediate  investigation.  It  was  found,  upon  in- 
quiry, that  the  magistrate  in  question  had  instituted  the  proceedings 
in  his  capacity  of  justice  of  the  peace,  an  office  which  he  held  under 
the  laws  of  the  State  of  Texas,  and  not  as  United  States  commissioner, 
and  that  upon  being  advised  by  the  United  States  district  attorney  for 
that  district  that  it  was  not  a  matter  of  which  either  the  authorities  of 
the  United  States  or  of  the  State  should  take  cognizance,  the  master 
being  amenable  to  the  laws  of  the  nation  to  which  his  vessel  belonged, 
the  complaint  was  at  once  dismissed  by  the  magistrate.  In  the  same 
note  the  British  minister  complained  of  certain  proceedings  of  two 
United  States  commissioners  at  Tsew  Orleans  with  reference  to  the 
discharge  of  seamen  from  a  British  vessel  at  that  port,  the  seamen  in 
question  being  citizens  of  the  United  States  and  claiming  the  interposi- 
tion of  the  local  authorities  on  that  ground.  These  officers  were  also  in- 
structed that  such  interference  with  the  police  regulations  established  by 
Great  Britain  for  the  government  of  their  merchant  vessels  was  contrary 
to  the  policy  of  this  Government,  and  that  even  in  cases  where  the  right 
of  the  local  magistrates  to  assert  the  jurisdiction  was  undoubted,  its 
exercise  should  be  avoided.  These  instructions  have  been  adhered  to, 
and  there  has  since  been  no  recurrence  at  that  port  of  the  interference 
then  complained  of. 

"In  another  case,  which  occurred  at  Charleston,  S.  (J.,  and  which  was 
brought  to  the  attention  of  the  Dej)artment  by  Sir  Edward  Thornton 
in  a  note  of  the  6th  of  May,  1874,  in  which  it  appeared  that  John  Bogan, 
a  seaman  of  the  British  ship  Amelie,  complained  before  a  United 
States  commissioner  of  ill  treatment  received  at  the  hands  of  the  cap- 
tain of  that  vessel,  it  turned  out,  upon  inquiry,  that  the  commissioner 
was  not  advised  of  the  nationality  of  the  vessel  when  he  issued  his  war- 
rant of  arrest,  and,  that  as  soon  as  the  fact  was  disclosed  to  him  that 
the  occurrences  complained  of  took  place  upon  a  British  vessel,  he 
promptly  advised  the  United  States  district  attorney  of  that  circum- 
stance, and,  upon  the  advice  of  the  latter  officer,  immediately  dismissed 
the  complaint. 

"  In  these  several  cases,^occurring  in  the  United  States,  it  must  also  be 
noticed  that  the  proceedings  were  taken  by  petty  or  inferior  magistrates, 
who  may  not  reasonably  be  supposed  to  be  learned  in  the  law^,  while  in 
the  case  of  the  Lathley  Eich,  at  Hong-Kong,  the  proceedings  were 
commenced  before  a  nisi  prius  court  and  ultimately  heard  and  detep- 
120 


CHAP.   II.]  SHIP    NATIONALIZED    BY    FLAG.  [§  33. 

mined  on  api)eal  before  the  supreme  court  of  tbe  colony,  and  the  .same 
is  true  of  some  cases  which  occurred  at  Melbourne. 

"The  instances  thus  given,  taken  in  connection  with  the  practice  and 
doctrine  laid  down  by  Mr.  Justice  Betts  in  the  United  States  court  for 
New  York,  sitting  in  admiralty,  to  which  I  adverted  in  my  No.  476  to 
you,  serves  to  show  the  uniform  regard  in  which  these  ])rinciples  of  in- 
ternational comity  and  convenience  have  been  held  by  the  Government 
of  the  United  States. 

"  It  is  therefore  with  regret  that  1  notice  the  absence  of  a  reciprocal 
respect  for  these  principles  in  the  administration  of  the  local  courts  of 
Great  Britain,  and  particularly  in  Her  Majesty's  colonies,  in  their  pro- 
ceedings towards  American  merchant  vessels. 

"  Bearing  in  mind  the  views  expressed  in  my  former  instruction  (No. 
476),  it  is  desired  that  you  will  take  the  earliest  favorable  opportunity 
of  bringing  to  the  attention  of  Her  Majesty's  Government  the  case  of 
the  Lathley  Kich,  now  transmitted  in  connection  with  the  general 
question  of  the  jurisdiction  referred  to,  and  you  will  represent  to  Earl 
Derby  the  interest  felt  by  this  Government  in  the  adoption  of  such 
measures  by  that  of  Great  Britain  as  will  prevent  a  recurrence  of  such 
cases,  and  be  effective,  especially  as  regards  the  colonial  courts,  in 
putting  a  stop  to  this  exercise  of  jurisdiction,  at  once  injurious  to  the 
interests  of  the  vessels  which  may  be  the  subjects  of  it,  and  the  pos- 
sible cause  of  international  inconvenience  to  two  nations  so  largely  in- 
terested in  the  commerce  of  the  world  as  are  those  of  the  United 
States  and  Great  Britain." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Schenclc,  March  12,   1875.     MSB.  lust.,  Great 
Britain;  For.  Eel..  1875. 

The  position  that  a  ship  at  sea  is  a  part  of  the  country  whose  Hag  she 
bears  is  assailed  in  the  North  American  Review  of  July,  1862  (vol.  95,  8), 
and  I  he  reason  is  given  that  such  ships  on  entering  ports  are  subject  in 
polic(>  matters  to  the  law  of  tbe  port.  l>ut  the  rule  itself  is  subject  to 
this  limitation,  being  only  applicable  to  "ships  at  sea."  It  would  be 
MS  lexical  to  deny  the  allegiance  of  a.  subject  to  his  sovereign  on  the 
iiroiiiiU  that  when  he  sojourns  in  a  foreign  laud  he  becomes  bound, 
win  II  ill  that  land,  by  its  police  laws. 

A  ship  cannot  draw  around  her  a  line  of  jurisdiction  and  appropri^ite 
so  much  of  the  ocean  as  she  may  deem  necessary  for  her  protection,  and 
l)!event  any  nearer  approach. 

The  Marianna  Flora,  11  Wheaton,  1. 

A  ship  at  sea  is  regarded  in  international  law  as  a  portion  of  the 
territory  of  the  nation  whose  tlag  she  carries  and  as  subject  to  that 
nation's  jurisdiction. 

(Jrapo  r.  Kelly,  16  Wa!):ic.>,  (ilf). 

"  A  vessel  at  sea  is  considered  as  i)art  <»f  the  territory  to  whicli  it  be- 
longs wben  at  home.     It  carries  with  if  the  local  logal  rights  and  legal 

131 


§  33.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

jurisdiction  of  such  locality.     All  on  board  are  endowed  and  subject  ac- 
cordingly." 

Swayne,  J. ;  WilBOii  v.  McNamee,  102  U.  S.,  574;  S.  P.,  Maclachlan,  Merch.  Ship., 
3cl  ed.,  G4,  65,  140. 

A  person  on  board  of  an  American  vessel  is,  in  contemplation  of  law, 
within  the  territory  and  jurisdiction  of  the  United  States. 
Re  Moucau,  14  Fed.  Rep'r,  44. 

"  The  extraterritorial  jurisdiction  of  a  nation,  exclusive  or  concurrent, 
extends  over  the  following  places : 

"  1.  All  the  land  or  water  included  within  the  lines  of  its  fleets  or 
armies,  exclusive  in  respect  to  its  own  members,  and  concurrent  with 
that  of  the  nation  owning  the  territory,  in  respect  to  members  of  that 
or  of  any  other  nation. 

"  2.  All  ships  bearing  its  national  character,  exclusive  except  in  the 
case  of  a  private  ship  within  the  limits  of  another  nation,  and  in  that 
case,  concurrent  with  such  nation." 

"  4.  Vessels  belonging  to  the  citizens  of  the  nation  on  the  high  seas, 
and  public  vessels,  wherever  found,  have  some  of  the  attributes  of  ter- 
ritory. 

Field,  Int.  Code,  $  309. 

"In  regard,  however,  to  the  territorial  character  of  vessels  it  is  nec- 
essary to  be  more  definite,  for  if  they  have  thivS  property  in  some  re- 
spects but  not  in  all,  only  false  and  illogical  deductions  can  be  drawn 
from  an  unqualified  statement.  Is  it  true,  then,  that  they  are  iden- 
tical in  their  properties  with  territory  I  If  a  shij)  is  confiscated  on  ac- 
count of  piracy  or  of  violation  of  custom-house  laws  in  a  foreign  port, 
or  is  there  attached  by  the  owner's  creditor  and  becomes  his  i)roperty, 
we  never  think  that  territory  has  been  taken  away.  For  a  crime  com- 
mitted in  port  a  vessel  may  be  chased  into  the  high  seas  and  there  ar- 
rested, without  a  suspicion  that  territorial  rights  have  been  violated, 
while  to  chase  a  criminal  across  the  borders  and  seize  bim  on  foreign 
soil  is  agross  offense  against  sovereignty.  Again,  a  private  vessel  when 
it  arrives  in  a  foreign  port,  ceases  to  be  regarded  as  territory,  unless 
treaty  provides  otherwise,  and  then  becomes  merely  the  property-  <>t 
aliens.  If  injury  is  done  to  it,  it  is  an  injury  which  indirectly  alic'cts 
the  sovereign  of  the  alien,  whereas  injuries  to  territory,  properly  so 
called,  affect  the  public  power  in  an  immediate  manner.  It  is  unsafe, 
then,  to  argue  on  the  assumption  that  ships  are  altogether  territory,  as 
will  appear,  jjerhaps,  when  we  come  to  consider  the  laws  of  maritime 
warfare.  On  the  other  hand,  private  ships  have  certain  qualities  iv- 
sembling  those  of  territory  :  (1)  As  against  their  crews  on  the  high 
seas  ;  for  the  territorial  or  municipal  law  accompanies  them  as  long  as 
they  are  beyond  the  reach  of  other  law,  or  until  they  come  within  the 
bounds  of  some  other  jurisdiction.  (2)  As  against  foreigners,  who  are 
excluded  on  the  high  seas  from  any  act  of  sovereignty  over  them,  just 
as  if  they  were  a  part  of  the  soil  of  their  country.  Public  vessels  stand 
on  iiigher  ground;  they  are  not  only  public  i)roperty,  bnilt  or  bought 
by  the  Government,  but  they  are,  as  it  were,  floating  barracks,  a  i)art 
of  the  jiublic  oiganism,  and  iei)resent  the  national  dignity,  and  on  these 
accounts,  even  in  foreign  ports,  are  exempt  from  the  local  jurisdiction. 
In  both  oases,  however,  it  is  on  a<'count  of  the  crew,  lather  than  of  the 

122 


CHAP.  II.]  ClilAlES    AT    SEA.  [§  odd. 

ship  itself,  that  they  have  any  territorial  quality.  Take  the  crew  away, 
let  the  abandoned  hulk  be  met  at  sea;  it  now  becomes  property,  and 
nothing  more." 

Woolsey,  Int.  Law,  vS  54. 


IX.  CRIMES  AT  SEA  SUBJECT  TO  COUNTRY  OF  FLAG 

§   33«. 

"I  have  no  doubt  that  an  offense,  committed  on  board  a  public  ship 
of  war,  on  the  high  seas,  is  committed  within  the  jurisdiction  of  the 
nation  to  whom  the  ship  belongs.  How  far  the  President  of  the 
United  States  would  be  justifiable  in  directing  the  judge  to  deliver 
up  the  offender  is  not  clear.  I  have  no  objection  to  advise  and  re- 
quest him  to  do  it." 

President  Adams  to  Mr.  Pickering,  Sec.  of  State,  May  21,  1799;  8  John  Ad- 
ams's Works,  651. 

[The  district  judge  of  South  Carolina  had  declined  to  deliver  up  to  Sir  Hyde 
Parker  a  seaman  who  had  been  engaged  in  a  mutiny  and  murder  of  the  oflS- 
cers  of  the  British  frigate  Hermione.] 

As  to  Robbins'  case,  see  infra,  ^  271a. 

"  I  inclose  herewith  a  copj-  of  a  dispatch  recently  received  from  A. 
C.  Litchfield,  esq.,  consul-general  of  the  United  States  at  Calcutta,  in 
relation  to  the  case  of  one  John  Anderson,  an  ordinary  seaman  on 
board  the  American  bark  C.  O.  Whitmore,  who,  it  api)ears,  stabbed 
and  killed  the  first  officer  of  the  ship  on  the  31st  of  January  last, 
while  that  vessel  was  on  her  way  from  New  York  to  Calcutta,  sixteen 
days  from  her  port  of  departure,  and  on  the  high  seas  in  latitude  25° 
35'  ^N".  and  longitude  35°  50'  W. 

"You  will  perceive  that  the  consul-general  invoked  the  aid  of  the 
local  police  authorities  in  securing  the  safe  custody  of  the  accused, 
who  was  a  prisoner  of  the  United  States,  until  he  could  complete  the 
necessary  arrangements  for  sending  him  to  this  country  for  trial, 
against  whose  municipal  laws  only  he  was  accused  of  having  of- 
fended, and  that  while  thus  in  tbe  temporary  custody  of  the  local  po- 
lice, the  colonial  authorities  took  judicial  cognizance  of  the  matter, 
claiming,  under  the  advice  of  the  advocate-general  of  the  colony,  that, 
under  a  colonial  statute,  which  confers  upon  the  courts  of  the  colony 
jurisdiction  of  crimes  committed  by  a  British  subject  on  the  high 
seas,  even  though  such  crimes  be  committed  on  the  ship  of  a  for- 
eign nation,  and  that  inasmuch  as  the  accused,  although  appearing 
on  the  ship's  articles  under  the  name  of  John  Anderson,  subject  of 
Sweden,  had  declared  that  his  real  name  was  Alfred  Hussey,  and  that 
he  was  a  native  of  Liverpool  and  therefore  a  British  subject,  the  case 
came  within  the  jurisdiction  of  those  courts. 

'•The  matter  is  now  believed  to  ha\'e  reached  that  i)uint  in  the  judi- 
cial proceedijigs   wheie  effective  measures  for  asserting  the  jurisdic- 

123 


^N  33a.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II 

tional  rights  of  the  United  States  would  be  unavoidable  in  this  par- 
ticular case.  And  whilst  I  entertain  no  doubt  that  the  accused  will 
receive  as  fair  a  trial  in  the  high  court  of  Calcutta,  where  it  is  under- 
stood he  is  to  be  tried,  as  he  would  in  the  circuit  court  of  the  United 
States,  in  which  tribunal  he  would  be  arraigned  were  he  sent  here  for 
trial,  I  deem  it  proper,  at  the  same  time,  to  instruct  you  to  bring  the 
question  to  the  attention  of  her  Majesty's  Government,  in  order  to 
have  it  distinctly  understood  that  this  case  cannot  be  admitted  by  this 
Government  as  a  precedent  for  any  similar  cases  that  may  arrise  in 
the  future.  No  principle  of  public  law  is  better  understood  nor  more 
universally  recognized  than  that  merchant  vessels  on  the  high  seas 
are  under  the  jurisdiction  of  the  nation  to  which  they  belong,  and 
that  as  to  common  crimes  committed  on  such  vessels  while  on  the  high 
seas,  the  competent  tribunals  of  the  vessel's  nation  have  exclusive  ju- 
risdiction of  the  questions  of  trial  and  punishment  of  any  person  thus 
accused  of  the  commission  of  a  crime  against  its  municipal  laws;  the 
nationality  of  the  accused  can  have  no  more  to  do  with  the  question 
of  jurisdiction  than  it  would  had  he  committed  the  same  crime  within 
the  geographical  territorial  limits  of  the  nation  against  whose  munic- 
ipal laws  he  offends.  The  merchant  ship,  while  on  the  high  seas,  is, 
as  the  ship  of  war  is  everywhere,  a  part  of  the  territory  of  the  nation 
to  which  she  belongs. 

"  I  pass  over  the  apparent  breach  of  comity  in  the  proceeding  of 
the  colonial  ofl&cials  as  being  rather  the  result  of  inadvertence  and 
possible  misconception  on  the  part  of  the  Government  law  officer  of 
the  colony,  than  any  design  to  question  the  sovereignty  of  the  United 
States  in  this  or  cases  of  a  similar  nature." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Welsh,  July  11,  1879.     MSS.  Inst.,  Great  Brit. ; 

For.  Rel.,  1879. 
That  a  crime  by  a  foreigner  in  a  United  States  ship  is  cognizable  by  the  United 

States,  see,  further,  Whart.  Cr.  Law,  S  269. 
Cf.  notice  of  Ross'  case  in  President  Arthur's  first  annual  message,  Dec.  5,  1681, 

infra,  ^  I'i.'j. 

•'  Referring  to  my  instruction  No.  328,  of  the  11th  instant,  in  relation 
to  the  case  of  John  Anderson,  alias  Alfred  Hussey,  and  the  claim  of 
jurisdiction  advanced  and  exercised  in  relation  thereto  by  the  high 
court  of  Calcutta,  a  British  tribunal,  notwithstanding  that  the  accused 
was  a  seaman  upon  the  American  bark  C.  O.  Whitmore,  and  the  crime 
for  which  he  was  tried  was  committed  on  the  high  seas,  I  have  now  to 
transmit  for  your  further  information,  and  as  material  to  the  intelligent 
discussion  of  the  points  involved,  should  Her  Majesty's  Government 
provoke  argument  thereon,  copy  of  an  additional  dispatch,  dated  the 
10th  ultimo,  received  from  Consul-General  Litchfield,  in  which  the  later 
proceedings  of  the  high  court.  (;oniprisin<i  further  assertion  and  exercise 
of  jurisdictional  power  in  tlie  premises,  are  so  fnlly  set  forth  that  it  is 
found  unnecessary  to  your  understanding  of  the  e;ise  to  send  you  trans- 
cript of  the  voluminous  appendices  transmitted  by  the  consul-general. 
124 


CHAP.  II.]  CRIMES    AT    SEA.  [§  33a. 

"  Pending  Xlie,  reply  of  Her  Majesty's  (Jioverimient  lo  tlic  dispassion- 
ate representations  you  liave  already  been  directed  to  make,  I  liave  no 
farther  observations  to  add  to  tliose  of  the  consul-general  than  to  re- 
mark that,  while  the  verdict  of  the  jury,  convicting  the  man  of  man- 
slaughter, seems  to  have  been  technically  right  as  to  the  degree  of  the 
Clime  committed,  the  partiality  and  unfairness  of  the  proceedings, 
wiiich  this  Government  had  confidently  hoped  would  be  marked  by  the 
most  signal  impartiality  and  fairness,  cannot  but  be  deduced  from  the 
result  of  the  trial.  I  refer  especially  to  the  keeping  back  of  the  testi- 
mony of  witnesses  who  would  have  shown  aggravating  circumstances 
of  guilt;  in  the  notably  strong  recommendation  to  mercy;  and,  more 
than  all,  in  the  character  of  the  sentence,  a  purely  nominal  punishment, 
such  as  would  be  usually  injiicted  for  a  slight  contempt  of  court,  and 
unheard  of  before  in  any  British  court  as  a  measure  of  the  penalty  ibr 
manslaughter,  the  conviction  for  which  rested  on  the  verdict  of  a  jury, 
the  prisoner  having  been  set  free  within  forty-eight  hours,  without  even 
the  form  of  executive  clemency.  These  facts  are  here  thought  to  justify 
what  might  otherwise  seem  to  be  the  heated  and  indignant  comments 
of  Mr.  Litchfield  on  the  affair ;  and  should  the  assumption  of  Ijritish 
jurisdiction  in  the  case  be  defended  by  Her  Majesty's  Government,  the 
(•ircumstances  adverted  to  would  seem  proper  to  be  brought  to  Lord 
Salisbury's  attention,  with  all  the  temperance  of  representation  per- 
mitted by  the  facts  themselves,  and  as  justifying  the  ground  taken, 
with  respect  to  such  assumption  of  jurisdiction,  in  my  previous  instruc- 
tion No.  328." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Welsh,  July  29,  1879.    MSS.  lust.,  Great  Brit.; 
For.  Eel,  1879. 

"  I  have  to  acknowledge  the  receipt  of  your  dispatch  No.  17,  of  the 
IGth  ultimo,  inclosing  a  copy  of  the  correspondence  between  your  lega- 
tion and  the  foreign  office  in  relation  to  the  case  of  John  Anderson,  who 
was  tried  in  Calcutta  for  a  crime  alleged  to  have  been  committed  on 
board  a  vessel  of  the  United  States  on  the  high  seas,  which  corre- 
si>ondence  contains  an  expression  of  the  regret  of  Her  Majesty's  Gov- 
ernment that  the  action  of  the  authorities  at  Calcutta  in  the  case  in 
question  should  have  been  governed  by  a  view  of  the  law  which,  in  the 
o])inion  of  Her  Majesty's  Government,  cannot  be  supported. 

"  In  reply,  I  have  to  instruct  you  to  convey  to  the  proper  quarter  an 
expression  of  this  Department's  appreciation  of  the  candor  and  good- 
will with  which  Her  Majesty's  Government  have  considered  this  matter, 
and  to  say,  moreover,  that  it  has  afforded  this  Government  great  satis- 
faction to  learn  that  the  action  of  the  authorities  of  Calcutta  in  the  case 
of  Anderson  is  to  be  attributed  to  a  misconception,  and  not  to  any  de- 
sign to  question  the  jurisdiction  of  the  United  States  in  that  or  any 
similar  case." 

Mr.  Hay,  Acting  Sec.  of  State,  to  Mr.  Lowell,  July  7,  1880.     MSS.  Inst.,  Great 
Brit. ;  For.  Eel,  1880. 

125 


§  33a.]  SOVEREIGNTY    OVER    WATER.  [cHAP.  11. 

The  Govonimciit  o\'  Chili  has  no  jurisdiction  over  a  merchant  vessel 
of  the  United  States  on  the  hijjh  seas  so  us  to  enable  it  to  proceed 
a.yaiiist  that  vessel  or  its  otticers,  when  in  a  Chilian  port,  lor  cruelty 
on  the  hij:li  seas  to  a  Chilian  subject  on  board  that  vessel. 

Mr.  Frolin^^buyseii,  Sec.  of  State,  to  Mr.  Logan,  Oct.  15,  18r;3.     MSS.  Inst.^ 
t"hili. 

Murder  or  robbery  committed  on  the  high  seas  may  be  cognizableby 
the  courts  of  the  United  States,  though  committed  on  board  of  a  vessel 
not  belonginj,^  to  citizens  of  the  United  States,  if  she  had  no  national 
character,  but  was  held  and  possessed  by  pirates  or  persons  not  law- 
fully sailing  under  the  flag  of  any  foreign  nation. 

U.  S.  V.  Holmes,  5  Wheaton,  412.     Infra,  $  380,  g. 

Where  a  gun  was  fired  from  an  American  ship  lying  in  a  harbor  of 
one  of  the  Society  Islands,  killing  a  person  on  board  a  schooner  be- 
longing to  the  natives  in  the  harbor,  it  was  held  by  Judge  Story  that 
the  act  was,  in  contemplation  of  law,  committed  on  board  the  foreign 
schooner  where  the  shot  took  effect,  and  that  jurisdiction  of  the  ofiense 
belonged  to  the  foreign  Government  and  not  to  the  courts  of  the  United 
States.  Where  a  prisoner  under  such  circumstances  was  sent  home  for 
trial,  it  was  held  that  the  court  had  no  jurisdiction. 
U.  S.  r.  Davis,  2  Sumner,  482. 

Offenses  committed  on  the  high  seas,  on  vessels  belonging  exclusively 
to  the  subjects  of  a  foreign  power,  are  not  punishable  in  the  courts 
of  the  United  States. 

3  0i>.,  4^*4,  Grundy,  1839. 

Crimes  committed  on  board  a  merchant  ship  on  the  high  seas  are 
triable  only  by  the  authorities  of  the  country  to  which  she  belongs. 

Theauthorilies  of  a  foreign  country  may,  at  the  instance  of  a  consul 
from  the  country  to  which  the  ship  belongs,  assist  in  detaining  the 
persons  charged,  but  they  cannot  detain  them  otherwise. 

A  fortiori,  they  cannot  go  on  board  the  shij)  and  rearrest  them. after 
they  have  been  in  their  custody  and  have  been  returned. 

The  citi/.ensliip  of  the  accused  does  not  aliect  the  question  of  juris- 
diction. 

8  Op.,  73,  Cusliing,  1K'>6. 

See  .li8cus8ion  ..f  this  case  in  Mr.  Marcy's  instructions  to  .Mr.  Mason,  Sept.  8, 
1<.6.    MSS.  Inst.,  France. 

"Tl.e  eourt.s  of  the  United  States  have  no  jurisdiction  to  redress 
.110  .s,,,,oscd  torts  eomn.ittedou  the  high  seas  upon  the  property  of 
Vicn  IK  r^  •'  '''  '"'T''^  ^^^-"^a!:^^-  commissioned  by  a  foreign  and 
io  f  t'  .Tl  •  ^',^;'''l^^^^^r^  ''^"<^»'  cruiser  has  been  fitted  out  in  viola- 
^nd  n  ini  r  1  •';  i^''*'  coui-tsofthe  captors  are  open  for  redress, 
and  an  injured  neutral  may  there  obtain  in.lenniitv  for  a  wanton  o^ 
126 


CHAP.  II.]  PORTS.  [§  34. 

illicit  capture.  JSIor  is  the  jurisdiction  of  the  neutral  court  enlarged  by 
the  fact  that  the  corpus  no  longer  continues  under  the  control  of  the 
(capturing  i)()\ver.     The  Estrella,  4  Wheat.,  29S." 

2  Hallcck'8  Int.  Law  (IJaker'.s  ed.),  208. 
As  to  piracy,  see  infra,  ^^  '^60  J)'. 

X.  POETS  OPEN  TO  ALL  NATIONS. 

§34. 

As  to  nou-intercourse,  see  infra,  §  319. 

As  to  embargo  and  closure  of  ports,  see  infra  §  320. 

As  to  neutral's  duty  in  excluding  belligerent  operations,  see  infra,  $  398. 

As  to  asylum  to  belligerent  ships,  see  infra,  §  394. 

As  to  territorial  waters  in  general,  see  supra,  ^  26. 

"  It  is  consistent  with  the  just  principles,  as  it  is  with  the  interests  of 
the  United  States,  to  receive  the  vessels  of  all  countries  into  their  ports, 
to  whatever  party  belonging  and  under  whatever  flag  sailing,  pirates 
excepted,  requiring  of  them  only  the  payment  of  the  duties,  and  obe- 
dience to  the  laws  while  under  their  jurisdiction,  without  adverting  to 
the  question  whether  they  had  committed  any  violation  of  the  allegiance 
or  laws  obligatory  on  them  in  the  countries  to  which  they  belonged, 
either  in  assuming  such  flag,  or  in  any  other  respect." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  De  Onis,  Jan.  19,  1816.     MSS.  For.  Leg.  Notes. 

While  it  was  permissible,  under  the  law  of  nations,  for  China,  during 
the  French-Chinese  war,  to  sink  obstructions  in  Canton  River  for  the 
jjurpose  of  preventing  the  access  of  French  men-of-war  to  Canton,  such 
obstructions  can  only  be  retained  as  long  as  needed  for  belligerent  pur- 
poses. Their  removal  after  peace  is  required,  not  merely  by  the  treaties 
entered  into  b^^  China  making  Canton  an  open  port,  but  by  the  law  of 
nations. 

See  infra,  '^  3Gla. 

Unless  closed  by  local  law,  the  ports  of  a  friendly  nation  are  con- 
sidered as  open  to  the  public  ships  of  all  powers  with  whom  it  is  at 
peace,  and  they  are  supposed  to  enter  such  ports,  and  to  remain  in  them 
while  allowed  to  remain,  under  the  j^rotection  of  the  Government  of  the 
place.  The  implied  license,  under  w^hich  such  vessel  enters  a  friendly 
port,  may  reasonably  be  construed,  and,  it  seems  to  the  court,  ought 
to  be  construed,  as  containing  an  exemi)tion  from  the  jurisdiction  of 
the  sovereign  within  whose  territory  she  claims  the  rights  of  hospital- 
ity. 

The  Exchange  v.  McFaddon,  7  Cranch,  116,  infra,  ^  36. 

The  hospitality  of  the  ports  of  the  United  States,  when  a  neutral,  is 
extended  equally  to  the  vessels  of  each  belligerent,  when  visiting  for 

127 


v<;  3r).]  SOVKh'KIfJNTV    oVKk    WATKR.  JCHAI'.   II. 

purposes  ul  cDiiM'iiic  lice,   (tf  u  lifii  driven  t(t  take  lefugf   from  stoiiiis 

oj'  ;i  siijterioi-  ii;i\  III  Inlf'e. 

Mr.  Clay,  .Si-c.  oCStati-,  to  Mr.  Tacou,  Oct,  27,  1827.     MSS.  For.  Log.  Notes.   Mr. 

(.'lay  to  Mr.  Iteliello,  Apr.  8,  1828;  ib. 
A.s  to  e.\fnii)tious  in  ciiscm  of  cDtraiice  through  stress  of  weather,  or  force,  see 

infra,  ^  :{d. 

XI.  MERCHANT  VESSELS  SUBJECT  10  POLICE  LAW  OF  PORT. 

§  35. 
[See,  as  to  consular  jurisdictiou  iu  ports,  infra,  ij  124.] 

Merchant  vessels  in  port  are  subject  to  the  police  law  of  the  port. 
Mr.  Everett,  Sec.  of  State,  to  Mr,  Ingereoll,  Feb.  17,  1853.    MSS.  Inst.,  Great 
Britain. 

The  iibdnctioii  by  Chilian  authorities,  in  a  Chilian  port,  from  a  United 
States  whi'.Iinf;-  ship,  of  sailors  claimed  to  be  Chilians,  in  time  of  peace, 
and  without  Justifiable  necessity,  is  an  act  at  variance  with  the  comity 
of  nations,  for  which  the  Chilian  Government  may  justly  be  held  re- 
si)onsil)le. 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Peyton,  July  2,  1851.     MSS.  Inst.,  Chili. 

"There  is  no  doubt  of  the  jurisdiction  of  our  officers  and  tribunals  to 
interfere  in  the  way  of  prevention  or  of  punishment  in  breaches  of  the 
peace  occurring  in  American  waters  upon  foreign  vessels.  There  is  no 
reason  why  our  police,  civil  or  naval,  should  hesitate  to  board  a  British 
vessel  for  the  purpose  of  quelling  a  mutiny  attended  with  assaults  upon 
the  otiicers  or  violent  resistance  to  the  exercise  of  their  legitimate  au- 
thority in  subjecting  refrnctory  seamen  to  temporary  confinement.  The 
difficulty,  however,  is  supposed  to  arise  in  cases  where  seamen  simply 
refuse  to  work,  and  where  confinement  of  them  would  reduce  the  vessel 
to  a  floating  jail,  without  the  power  of  motion.  The  remedy  that  is  sup- 
})o.sed  to  be  wanted  is  a  compulsion  upon  the  men  to  do  their  duty — in 
other  words,  to  enforce  a  specific  obligation  of  their  contract.  No  offi- 
cer or  tribunal  of  the  United  States  has  the  capacity  to  apply  such  a 
remedy  except  in  execution  of  a  treaty  or  convention,  which  seems 
necessary  ns  the  basis  of  laws  of  Congress  regulating  the  mode  of  pro- 
cedure. A  treaty  is  also  necessary  to  justify  the  detention  here  of  a 
foreign  seaman  upon  the  order  of  his  consul,  or  otherwise  than  as  a 
criminal  offender. 

"For any  intervention  beyond  the  limits  thus  indicated  an  agreement 
between  the  two  (Governments  would  seem  to  be  requisite.  I  have  to 
remark,  however,  that  the  question  which  I  have  discussed  is  purely  a 
legal  one,  upon  which  I  ought  to  reserve  myself  for  consultation  with 
the  Attorney-General." 

Mr.  Spwar.1.  Sec.  of  State,  to  Mr.  Bruce,  Mar.  W,  1866.     MSS.  Notes,  Great 
Britain. 

128 


CHAP.  II.]  LAW   OF   PORT.  [§  35. 

"The  bark  and  her  master  being  within  the  jurisdictional  limits  of 
the  State  of  Georgia,  the  master  undertook  to  resist  by  force  civil 
process  of  the  State  issued  against  him  and  the  owners  of  the  vessel. 
For  this  offense  against  the  State  a  criminal  proceeding  was  instituted, 
and  the  captain  was  arrested.  He  then  gave  bond  in  the  civil  suit  and 
the  criminal  prosecution  was  abandoned.  There  can,  I  presume,  be 
no  doubt  that  for  the  purposes  of  these  legal  proceedings  the  vessel 
and  her  master  were  at  the  time  subject  to  the  jurisdiction  of  Georgia, 
and  he  was  bound  to  submit  to  the  execution  of  process  issued  by  her 
regular  constituted  authorities.  I  am,  therefore,  unable  to  see  in  the 
case  any  ground  for  complaint  by  the  Spanish  Government  against  the 
United  States." 

Opiuion  of  the  Attoruey- General  quoted  by  Mr.  Evarts,  Sec.  of  State,  iu  note 
to  Mr.  Mendez,  Dec.  27, 187D.     MSS.  Notes,  Spain. 

"There  has  never  been  the  slightest  doubt  as  to  the  entire  legality  of 
extraterritorial  jurisdiction  when  acquired  in  foreign  jjorts  by  treaty. 
The  first  treaties  creating  such  rights  were  concluded  in  1787  and  1788, 
almost  simultaneously  with  the  adoption  of  the  Constitution,  and  were 
understood  by  the  framers  of  the  Constitution  as  compatible  therewith. 
In  the  next  sixty  years  several  other  extraterritorial  treaties  were  con- 
cluded, but  no  law  was  even  deemed  necessary  to  the  execution  of  those 
treaties  until  1S08,  and  then  the  statute  aimed  simply  to  codify  the 
treaty  rights  acquired  in  a  convenient  form ;  it  could  not  create  them. 
And  finally  the  circuit  courts  of  the  United  States  have  fully  sustained 
the  constitutionality  of  the  existing  statutes." 

Mr.  Frelingbuysen,  Sec.  of  State,  to  Mr.  Gardiner,  Mar.  16,  ISS'A.     MSS.  Dom. 
Let. 

A  merchant  vessel,  e3:cept  under  some  treaty  stipulation,  has  no  ex- 
emption from  the  territorial  jurisdiction  of  the  harbor  in  which  she  is 
lying. 

15  0p.,178,Taft,  1876. 

The  violation,  by  the  master  of  an  American  vessel  at  a  port  in  Ja- 
maica, of  the  British  revenue  laws,  is  not  punishable  by  any  statute  of 
the  United  States. 

16  Op.,  283,  DevenB,  1879. 

Unless  treaty  stipulations  provide  otherwise,  a  merchant  vessel  of 
one  country  visiting  the  ports  of  another  for  the  purpose  of  trade  is, 
so  long  as  she  remains,  subject  to  the  laws  which  govern  them. 
U.  S.  V.  Diekelman,  92  U.  S.,  520. 

"In  1856  a  case  arose  iu  reference  to  seamen  supposed  not  to  be  citi- 
zens of  the  United  States,  who,  havitig  committed  a  mutiny  at  sea,  on 
board  of  the  American  vessel  Atalanta,  were  brought  back  in  the  vessel 

S.  Mis.  1G2— VOL.  I 0  129 


^  ;i5a.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  11. 

to  MiirsrilU's,  wlicic.  on  tlie  ai)plicatiou  of  the  consul  of  the  Uuitcd. 
States,  they  were  receive*!  juitl  in)i)risoned  by  the  h)cal  authoritiis  on 
shore.  Six  of  ti)(Mn  were  atterwanls,  on  his  application,  taken  from 
l>ri.son  and  phiced  on  board  of  the  Atalanta  for  conveyance  to  the  United 
States,  undt'r  charjic  of  crime.  Then,  with  notice  to  the  consul,  but  iu 
spite  of  his  remonstrances,  llie  local  authorities  went  ou  board  of  the 
Atalanta,  for<;ibly  resumed  i)ossession  of  the  prisoners,  and  replaced 
them  in  conlineiuent  on  shore.  Mr.  Mason,  in  a  note  of  the  27th  of 
.June,  bSoO,  says:  '  It  is  the  lirst  instance  in  which  a  vessel  wearing  the 
ildtx  of  the  United  States,  lying  in  a  Fnuich  port,  or  a  French  ship  lying 
in  a  i)orf  of  the  United  States,  has,  since  the  date  of  the  treaty,  been 
visited  by  j.olice  oHicers  without  the  authority  of  the  consul.'  (MS. 
l)c|)artm<-nt  of  State.)  The  correspondence  berween  the  tw^o  Govern- 
ments having  been  submitted  to  the  Attorney-General  of  the  United 
States,  he  concurred  in  opinion  with  the  American  minister,  that  the 
local  authority  of  Marseilles  exceeded  its  lawful  power,  in  substance  as 
well  as  in  form,  and  that  there  could  be  no  conflict  on  the  part  of  France 
with  other  ])owers  on  account  of  the  nationality  of  the  prisoners,  for 
they  were  always  in  the  constructive,  if  not  in  the  actual,  custody  of 
the  UiMted  States,     Opinion  of  Attorneys  General,  vol.  viii,p.  73." 

Lawrence's  Wheaton,  ed.  1863,  p.  207. 

"The  state  of  international  law  on  the  subject  of  private  vessels  iu 
loreign  ])orts  *  *  *  may  be  said  to  be  this :  So  far  as  regards  acts 
«ione  at  sea  before  her  arrival  in  port,  and  acts  done  on  board  in  port 
by  members  of  the  crew  to  one  another,  and  so  far  as  regards  the  gen- 
eral regulation  of  the  rights  and  duties  of  those  belonging  on  loard, 
the  vessel  is  exempt  from  local  Jurisdiction;  but,  if  the  acts  done  on 
boanl  ati'ect  the  i)eace  of  the  country  in  whose  port  she  lies,  or  the  per- 
sons or  property  of  its  subjects,  to  that  extent  that  state  has  jurisdic- 
tion. The  local  authorities  have  a  right  to  visit  all  such  vessels  to  as- 
certain the  nature  of  any  alleged  occurrence  on  board.  Of  course,  no 
exemption  is  ever  claimed  for  injuries  done  by  the  vessel  to  property  or 
]>ersons  in  port,  or  for  acts  of  her  company  not  done  on  board  the  ves- 
sel, or  for  their  personal  contracts  or  civil  obligations  or  duties  relating 
to  persons  not  of  the  ship's  comi)auy." 

D.-iiia's  Wheaton,  ^  9.'),  note  .5H. 
XII.  CHIMES  ON  SUCH  VESSELS,  MOW  FAR  SUBJECT  TO  PORT  LAW. 

§  35a. 

The  sovereign  of  a  port  has,  by  the  law  of  nations,  jurisdiction  of 
criminal  offenses  aboard  merchant  vessels  of  such  port,  which  disturb 
the  peace  of  the  port. 

See  Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Roux  de  Roclielle,  Jan.  27,  1831.    MSS. 
For.  Leg.  Notes. 

^  An  assault  committed  on  board  a  United  States  merchant  ship  in  a 
yew  Granada  port,  on  a  citizen  of  ^'ew  Granada,  is  cognizable  by  New 
Granada,  and  not  by  the  United  States. 

Mr.  Marcy.  .Sep.  of  State,  to  Mr.  Paredes,  Sept.  27,  1853.    MSS.  Notes,  Colombo 
130 


CHAP.  II.]  LAW    OF    PORT.  [§  35a. 

"As  to  the  jurisdiction  over  offenses  committed  on  board  of  ii  mer- 
chant vessel  by  the  ofl&cers  or  company  of  the  vessel,  towards  each  other, 
while  in  the  harbor  or  waters  of  a  foreign  power,  there  is  considerable 
diversity  of  opinions.  Some  nations  yield  the  jurisdiction  in  such  cases, 
and  some  assert  it. 

"If  the  United  States  claim  jurisdiction  over  all  offenses  committed 
on  board  of  foreign  private  vessels  in  their  harbors  or  waters,  they 
cannot,  with  consistency,  assert  the  right  to  have  their  citizens  exempt 
from  the  jurisdiction  of  the  local  authorities  when  they  commit  similar 
offenses  in  foreign  ports. 

"This  question  of  jurisdiction  has  been  under  the  consideration  of  the 
Supreme  Court  of  the  United  States.  The  views  expressed  by  that 
court  are  those  which  this  Government  approves,  and  is  disposed  to 
abide  by  in  its  intercourse  with  foreign  nations. 

"As  a  general  rule,  the  jurisdiction  of  a  nation  is  exclusive  and  abso- 
lute within  its  own  territories,  of  which  harbors  and  littoral  waters  are 
as  clearly  a  part  as  the  land.  Eestrictions  may  be  imposed  upon  it  by 
treaties  and  a  few  have  been  yielded  by  common  consent,  and  thus  have 
come  to  be  regarded  as  rules  of  international  law. 

"There  is  nothing  in  our  treaty  with  Peru  which  debars  her  from 
taking  cognizance  of  such  an  offense  as  is  imputed  to  Captain  Adams. 
Our  right  to  withdraw  him  from  her  general  jurisdiction  over  offenses 
committed  within  her  territories  must  be  derived,  if  we  have  sucL  a 
right,  from  the  law  of  nations." 

Mr.  Marcy,  Sec.  of  State,  to  M-.  Clay,  Aug.  31,  1855.     MSS.  lust.,  Peru. 

"We  should  undoubtedly  deny  the  right  of  any  foreign  power  to  de- 
mand the  exemption  from  trial  and  punishment  by  our  courts,  of  one  of 
its  subjects,  who  had  committed  a  crime  on  board  of  a  foreign  trading 
vessel  in  one  of  our  harbors,  though  the  offense  should  be  one  which 
only  affected  the  officers,  crew,  or  company  of  that  vessel.  Circum- 
stances might  render  it  proper  to  forego  the  exercise  of  the  right  to  try 
such  an  offender,  but  still  the  right  would  exist,  and  it  would  be  at  our 
option  to  yield  or  enforce  the  exercise  of  it. 

"This  being  our  position  towards  all  nations  where  treaty  stipulations 
do  not  interfere,  they  can  hold  the  same  position  towards  us  without  our 
being  able  to  gainsay  it." 

Ibid. 

"This  Government  does  not  apply  the  doctrine  of  extraterritoriality  to 
its  private  or  merchant  ships  in  foreign  ports,  except  in  cases  where  it 
has  been  conceded  by  treaty  or  established  usage,  and  it  does  not  pre- 
tend that  it  has  been  so  conceded  in  criminal  cases  to  American  mer- 
chant vessels  in  British  ports.     *     *     * 

"While  each  country  can  unquestionably  exercise  jurisdiction  in  its 
own  ports  over  the  private  or  merchant  vessels  of  the  other,  it  is  pre- 
sumed there  is  a  mutual  disposition  on  both  sides  not  to  exert  it  in  a 

131 


§  35a.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

^v;ly  whk-b  will  intcrnMe  witU  the  i)roper  discii)line  of  the  ships  of  either 
nation.  It  every  coiiiplaiiit  of  any  individual  of  the  crew  of  the  vessel 
against  the  officers  for  ill-treatment  is  to  be  taken  up  by  the  civil  au- 
thorities on  shore,  and  these  ofiicers  prosecuted  as  criminals,  comnjercial 
intercourse  will  be  subjected  to  very  great  annoyance  and  serious  det- 
riment." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Crampton,  Apr.  19,  1856.     MSS.  Notes,  Great 
Britain. 

"The  right  of  the  Italian  authorities  to  search  a  (merchant)  vessel  in 
their  ports  for  a  person  charged  with  crime  is  entire,  unless  it  shall  have 
been  surrendered  by  treaty,  which  was  not  the  fact  in  this  instant  e. 
Though  the  deserter  did  not  prove  to  be  amenable  to  the  jurisdiction  of 
the  local  authorities,  as  he  was  arrested  by  taem  at  the  instance  of  the 
British  consul,  they  may  have  supposed  that  they  were  only  discharg- 
ing their  duty  in  the  matter." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Marsh,  May  2,  1876.     MSS.  Inst.,  Italy. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  9th 
instant,  in  relation  to  the  cases  of  the  captains  of  the  Hungarian  mer- 
chant vessels  Ararat  and  Mimi  P.,  in  which  you  request,  on  behalf  of 
your  Government,  to  be  put  in  possession  of  the  views  of  the  Govern- 
ment of  the  United  States  on  the  question  of  local  jurisdiction  in%-olved 
in  the  case  referred  to. 

"  I  inclose  herewith  a  copy  of  an  opinion  of  the  Attorney -General  of 
the  Mtli  July  last,  in  response  to  the  request  I  made  of  that  functionary 
on  the  27th  of  June  of  the  same  year,  and  of  which  I  had  the  honor  to 
inform  Count  Lippe-Weissenfeld. 

"Your  contention  rests  on  the  eleventh  article  of  the  consular  con- 
vention concluded  between  the  United  States  and  the  Austro-Hungarian 
monarchy  on  the  11th  July,  1870.  The  article  referred  to  is  in  the  fol- 
lowing words,  namely: 

"  Consuls,  vice-consuls,  or  consular  agents  shall  hare  exclusive  charge 
of  the  internal  order  of  the  merchant  vessels  of  their  nation.  They 
shall  have,  therefore,  the  exclusive  power  to  take  cognizance  of  and  to 
Pet  tie  all  differences  which  may  arise  at  sea  or  in  port  between  captains, 
ofiticers,  and  crew  in  reference  to  wages  and  the  execution  of  mutual 
contracts,  subject  in  each  case  to  the  laws  of  their  own  nation. 

'•The  local  authorites  shall  in  no  way  interfere,  except  in  cases  where 
the  differences  on  board  ship  are  of  a  nature  to  disturb  the  peace  and 
pnbl'c  order  in  port  or  on  shore,  or  when  persons  other  than  the  oflicers 
and  crew  of  the  vessel  are  parties  to  the  disturbance.  Except  as  afore- 
said, the  Jocal  authorities  shall  confine  themselves  to  the  rendering  of 
forcible  assistance  if  required  by  the  consuls,  vice-consuls,  or  consular 
agents,  and  shall  cause  the  arrest,  temporary  impriwsonment,  and 
removal  on  board  his  own  vessel  of  every  person  whose  name  is  found 
on  the  muster-rolls  or  register  of  the  ship  or  list  of  the  crew. 
132  « 


CHAP.  II.]  LAW    OF    PORT.  [§  35rt. 

"I  find  no  difljci.lty  iu  tigreeiiig  witli  your  statement,  tbat  by  the 
general  principles  of  international  law  private  or  mercbant  vessels  en- 
tering the  i)orts  of  another  nation  than  their  own  are  subject  to  the 
local  jurisdiction  ;  and  1  also  recognize  at  once  the  conveuience  and 
desirability  of  the  rule  you  suggest  as  that  adopted  by  France,  and  fol- 
lowed bj'  some  other  nations,  that  local  courts  should  decline  to  take 
jurisdiction  of  cases  involving  acts  of  mere  interior  discipline  of  the 
vessel.  Such,  indeed,  has  been  the  course  recommended  by  the  execu- 
tive branch  of  this  Government  to  the  courts,  and  it  gives  me  pleasure 
to  be  able  to  add  that  both  the  Federal  and  State  courts  have  as  a 
general  rule  conformed  their  proceedings  iu  such  cases  to  that  sugges- 
tion. These  tribunals,  however,  are  bound  under  the  Constitntion  and 
laws  of  the  United  States  to  entertain  every  complaint  in  which  is  pre- 
sented a  prima  facie  case  of  violation  of  the  local  laws,  and  it  conse- 
quently becomes  necessary  in  such  cases  that  the  judge  should  hear  the 
evidence  before  he  is  able  to  determine  whether  the  case  is  one  of  mere 
discipline  connected  with  the  ship,  or  whether  it  is  of  such  ?  nature  as 
to  involve  a  distuibance  of  the  public  order  in  port  or  on  shore;  and 
bound  by  the  same  constitutional  and  statutory  provisions  the  execu- 
tive branch  of  the  Government  must  refrain  from  a^l  interference  with 
the  judicial  tribunals  in  regard  to  cases  or  questions  that  may  be  pend- 
ing before  such  tribunals.  No  doubt  is  entertained,  however,  but  that 
the  declarations  of  the  courts  will  always  be  had,  and  their  decisions 
be  always  rendered  with  a  due  regard  lor  the  obligations  of  the  Govern- 
ment under  its  treaty  stipulations  with  foreign  powers. 

"The  President,  I  need  scarcely  add,  will  ever  deem  it  his  duty  to 
give  full  efiFect,  in  spirit  and  in  letter,  to  the  provisions  of  the  conven- 
tion of  July,  1870,  between  this  Government  «"nd  that  of  Austria-Hun- 
gary, which  you  so  worthily  represent." 

Mr.   Frelingliuysen,   Sec.  of  State,  to  Banm  Schaefier,  Nov.    I'.l,  1883.     MSS. 

Notes,  Austria  ;  For.  Rel.,  1883. 
In  For.  Rel.  for  18«3,  17  _^,  is  given  a  full  report  of  the  trial  of  Com.  v.  Ferlan, 

Philadelphia,  1883,  referred  to  in  above  note. 
As  to  treaty,  infra,  §  141. 
As  to  consular  jurisdiction,  infra,  $  125. 

"A  merchant  vessel  in  port  is  within  the  jurisdiction  of  the  country 
owning  the  port,  with  reference  to  offenses  committed  on  shore  or  by 
any  member  of  the  crew  on  board,  when  the  peace  of  the  port  is  dis- 
turbed. In  the  United  States  police  officers  have  frequently  gone  on 
board  vessels  of  foreign  nations  in  harbor  and  arrested  persons  accused 
of  crimes  under  our  laws,  for  whose  arrest  proper  warrants  were  issued. 
A  case  of  this  kind,  with  which  you  perhaps  are  familiar,  was  decided 
by  a  Philadelphia  court  about  a  year  ago,  which  arose  from  the  arrest 
of  the  master  of  an  Austrian  vessel."  , 

Mr.  Frelinghnysen,  Sec.  of  State,  to  Mr.  Randall,  Mar.  11. 1884.     MSS.  Dom.  Let. 

133 


^S  :]ort.J  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

'•  It  may  be  safely  affirmed  tbat  when  a  mereliant  vessel  of  one  couu 
try  visits  the  jwrts  of  another  for  the  purposes  of  trade,  it  owes  tem- 
jtoiary  allej,nance  and  is  amenable  to  the  jnrisdiction  of  tbat  country, 
and  is  subject  to  the  laws  which  govern  the  port  it  visits  so  long  as  it 
remains,  unless  it  is  otherwise  provided,  by  treaty. 

"  Any  exemption  or  immunity  from  local  jurisdiction  must  be  derived 
from  the  consent  of  that  country." 

ilr.  Bayard,  Sec.  of  State,  to  Mr.  Hall,  March  12,  1885.  aiSS.  lust.  Cent.  Am. 
For.  Rel.,  1885. 

"  Generally  s])eaking,  the  consul  in  Hayti  has  jurisdiction  of  all  dis- 
]>utes  on  ship  board,  not  affecting  the  peace  of  the  port,  but  as  this 
light  is  not  specially  conceded  by  treaty  it  could  only  be  claimed  and 
exercised  by  comity,  and  in  the  absence  of  any  competent  claim  of 
jurisdiction  by  the  local  courts,  unless  indeed  the  right  may  spring  from 
Art.  XXXIII  of  said  treaty,  the  most-favored-nation  clause." 

Mr.  Bayard,  Sef.  of  State,  to  Mr.  Thomps^on,  July  :U,  18S5.     MSS.  lust.,  Hayti. 
See  as  to  jurisdiction  in  Japan,  infra,  ^  125. 

The  local  port  authority  has  jurisdiction  of  acts  committed  on  board 
of  a  foreign  merchant  ship  while  in  port,  ])rovided  those  acts  affect  the 
])pa('e  of  the  port,  but  not  otherwise  ;  and  its  jurisdiction  does  not  ex- 
tend to  acts  internal  to  the  ship,  or  occurring  on  the  high  seas. 

The  local  authority  has  right  to  enter  on  board  a  foreign  meichant- 
junn  in  ])ort  for  the  pnqiose  of  inquiry  universally,  but  for  the  purpose 
of  arrest  only  in  matters  within  its  ascertained  jurisdiction. 

8  Op.,  73,  Gushing,  18.'i6. 

(For  ah  account  of  tlie  cases  of  the  Newton  and  the  Sally,  iuvolviuj;'  the  qyues- 
tion  of  the  jurisdiction  of  United  States  consuls  over  crimes  committed  on 
board  United  States  vessels  in  French  ports,  seel  PLillimore  hit.  Law  (3 
ed.),484.) 

The  circuit  courts  of  the  United  States  have  not  jurisdiction,  under 
the  crimes  act  of  the  30th  of  April,  1790,  of  a  manslaughter  committed 
on  an  American  vessel  in  a  river  within  the  jurisdiction  of  a  foreign 
sovereign. 

V.  S.  I-.  Wiltheroer,  5  WheatOn,  76. 

But  see  Thomas  r.  Lane,  2  Sumii.,  l,aud  \1.  S.  r.  Goomhs,  12  Pet..  72,  cited 
iv/ra. 

It  was  held  by  the  English  judges,  on  a  case  reserved  in  1868.  that 
"The  admiralty  jnrisdiction  of  England  extended  over  British  vessels, 
not  only  when  they  are  sailing  on  the  high  seas,  but  also  when  they 
are  in  the  rivers  of  a  foreign  territory  at  a  ])lace  below  bridges,  where 
tin-  tide  ebbs  and  flows,  and  where  great  ships  go.  It  was  also  held 
that  all  seiimen,  whatever  their  nationality,  serving  on  board  British 
vessels,  are  amenable  to  the  provisions  of  British  law." 
R.  r.  Anderson,  L.  R..  l-G.  C.  R.,  1(31. 

"  It  is  clear,"  said  Bovill,  0.  J.,  in  the  course  of  his  opinion,  citing 
Ortolan,  "  that  with  regard  to  merchant  vessels  of  foreign  countries, 

134 


CHAP.  II.]  LAW    OF    PORT.  [§  35a. 

flic  French  iiatiou  do  not  assert  their  i)olice  law  against  the  crews  of 
Those  v'essels  unless  the  aid  of  the  Frencli  authority  be  invoked  by  those 
on  botird,  or  unless  the  offense  connnitted  leads  to  some  disturbance  in 
their  ports."  "As  far  as  Amei'iea  is  concerned  "  (the  defendant  was  an 
Aniericiui  citizen),  "she  has  by  statutes  made  regulations  lor  those  on 
board  her  vessels  in  foreign  ports,  and  we  have  adopted  the  same  course 
in  this  country.  When  vessels  go  into  a  foreign  port  they  must  re- 
spect the  laws  of  that  nation  to  which  the  port  belongs,  but  they  must 
also  respect  the  laws  of  the  nation  to  which  the  vessel  belongs."  To 
sustain  the  position  that  in  such  cases  the  admiralty  has  jurisdiction 
were  cited  :  Thomas  v.  Lane,  2  Sumner,  1,  and  U.  S.  v.  Coombs,  12  Pet., 
72,  which  cases,  it  was  maintained,  overruled  U.  S.  v.  Wiltberger,  5 
Wheat.,  70. 

In  E.  V.  Keyn,  L.  li.,  2  Ex.  D,  23 ;  13  Cox,  403,  a  case  growing  out 
of  the  Franconia  disaster,  it  was  ruled  in  England,  that  the  court  of 
criminal  appeal  has  no  jurisdiction  to  try  a  foreigner,  who,  in  a  foreign 
ship,  is  chargealde  with  a  negligent  collision,  producing  death  in  the 
colliding  English  shij),  though  the  collision  was  within  three  miles  of  the 
English  coast.  The  vote  of  the  court,  however,  on  this  point  was  seven 
to  six:  Aft'.,  Cockburn,  C.  J.,  Kelly,  C.  B.,  Brainwell,  J.  A.,  Lush,  J., 
I'ollock,  B,,  Field,  J.,  and  Sir  R.  Phillimore;  diss..  Lord  Coleridge,  C. 
J.,  Brett,  J.,  Amphlett,  J.  A.,  Grove,  Den  man,  and  Lindley,  JJ. 

This  case,  with  the  subsequent  legislation,  is  discussed  in  1  Crim.  Law 
Mag.,  701,  #. 

The  points  taken  by  Cockburn,  C.  J.,  in  which  a  majority  of  the 
judges  agreed,  were  as  follows  : 

" '  The  extent  of  the  realm  of  England  is  a  question,  not  of  inter-  . 
national  but  of  English  law. 

"  'There  is  no  evidence  that  the  sovereigns^of  this  country  ever  either 
claimed  or  exercised  any  special  jurisdiction  over  a  belt  of  sea  adja- 
<;ent  to  the  coast,  though  there  is  evidence  that  the  admiral  has  always 
claimed  jurisdiction  over  persons  on  board  of  British  ships,  wherever 
they  might  be,  and  that  he  formally  claimed  jurisdiction  over  all  persons 
and  all  ships  in  the  four  narrow  seas.  This  claim,  however,  has  long 
since  been  given  u|>  and  no  other  claim  has  ever  been  substituted  for  it. 
"'Hence  there  is  no  evidence  that  any  British  court  has  jurisdiction 
over  a  crime  committed  by  a  foreigner  on  board  a  foreign  ship  on  the 
high  sea,  but  within  three  miles  of  the  coast.'" 

2  Steph.  Hist.  Cr.  Law,  31 ;  1  Wbait.  Cr.  Law  (9ed.),  §  269. 

In  R.  V.  Keyn,  above  cited,  it  was  said  by  Sir  R.  Phillimore  that  "  the 
eonaensus  of  civilized  nations  has  recognized  a  maritime  extension  of 
frontier  to  the  distanceof  three  miles  from  low- water  mark,  because  such 
a  frontier  or  belt  of  water  is  necessary  for  the  defense  and  security 
of  the  adjacent  state."  By  Lindley,  J.,  it  was  said  that  "it  is  conceded 
that  even  in  time  of  peace  the  territoriality  of  a  foreign  merchant-ship, 
within  three  miles  of  the  coast  of  anj^  state,  does  not  exemi)t  that  ship 
or  its  crew  from  the  operation  of  those  laws  of  that  state  which  relate 
to  its  revenue  or  fisheries."  In  this  doctrine  the  judges  generally  con- 
curred, though  it  was  held,  by  a  majority  of  seven  to  six,  that  the  juris- 
diction, without  some  legislative  action,  could  not  be  exercised  for  the 
purposes  of  criminal  prosecution  over  foreigners  within  such  limits.  In 
1878  was  passed  the  act  of  Parliament  giving  such  jurisdiction.  [Quoted 
supra,  §  32.] 

See  Whart,  Conf.  of  Laws,  §  818. 

135 


^S  3G.J  sovei:eignty  over  water.  [chap.  ii.. 

XIII.  NOT  so  AS  TO  PUBLIC  SHIPS. 
§30. 

Ah  to  recoption  in  nontral  porta  of  belligerent  cruisers,  see  infra,  §394. 
As  to  pcnnitting  buch  cruisers  to    arm  and  proceed  to  sea,  see  ivj'ra,  ^  393, 
39(5,  :m. 

A  sbip-of-war,  wheu  in  a  foreign  friendly  port,  is  ordinarily  exempt 
from  tbe  jurisdiction  of  such  port. 

Mr.  Eiuulolpb,  Sec.  of  State,  to  Mr.  Hainniond,  July  23,  1794.    MSS.  Notes,  For. 

Leg. 
Mr.  Frelingbuysen,  Sec.  of  State,  to  Mr.  Romero,  May  25,  1882.    MSS.  Notes, 

Mex. 

But  the  ofticers  of  a  vessel-of-war  belonging  to  a  friendly  foreign 
nation  cannot  set  up  extra territorality  wheu  unoflQcially  on  shore  in  a 
port  in  whose  harbor  their  vessel  is  temporarily  moored. 

Mr.  Randolph,  Sec.  of  State,  to  Mr.  Hammond,  July  '23,  1794.    MSS.  For.  Leg. 
Notes. 

"  The  President  highly  disaj)proves  that  a  public  vessel-of-war,  belong- 
ing to  a  foreign  nation,  should  be  searched  by  officers  of  the  customs 
upon  a  suspicion  of  illicit  commerce.  The  propriety  of  representing 
such  a  suspicion  to  the  consul  of  that  nation,  or  the  commander  of  the 
vessel,  will  not  be  controverted,  this  being  a  course  respectful  and  cus- 
tomary. A  general  instruction  will  be  therefore  given  to  pursue  this 
cour.se,  with  the  view  that  if  it  should  be  inefiectual  the  Government 
of  the  United  States  may  adopt  those  measures  which  the  necessity  of 
the  case  and  iheir  rights  may  require." 

Mr.  Randolph,  Sec.  of  State,  to  Mr.  Fauchet,  Nov.  17,  1794,  cited  in  letter  of 
same  to  same,  .June  13,  179.").    MSS.  Notes,  For.  Leg. 

A  foreign  ship-of-war  admitted  by  courtesy  into  a  port  held  by  mili- 
tary occupation,  in  time  of  war,  by  forces  of  the  United  States,  is  sub- 
ject, so  far  as  concerns  the  right  to  carry  off  persons  from  such  port,  to 
the  military  orders  governing  the  port. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Tassara,  July  2,  1863.    MSS.  Notes,  Spain; 
Dip.Oorr.,  1863. 

"  Having  submitted  the  question  thus  raised  to  the  President  of  the 
Uniteil  States,  T  have  now  to  express  to  you  my  regret  at  the  conclu- 
sion at  which  the  Spanish  Government  has  arrived.  It  seems  to  me, 
in  effect,  to  set  uj),  although  unconsciously,  a  claim  that  a  Spanish 
ship-ofwar,  admitted  by  courtesy  into  a  place  actually  held  in  military 
occu])ation  by  the  forces  of  this  Government,  may  disregard  existing 
military  oiders,  which  are  issued  with  a  view  to  the  military  situation 
of  that  place.  This  seems,  in  effect,  nothing  less  than  a  cliiim  of  Span- 
i.sh  sovereignty  over  Ameiican  citizens  on  board  a  Spanish  ship,  not 
merely  within  the  civil  jurisdiction,  but  even  within  the  military  lines 
136 


CHAP.  II.J  LAW    OF    PORT.  [§  36. 

of  tlie  United  States  in  their  own  territories.  The  claim  thus  uiuler- 
stood  cauuot  be  conceded.  I  am,  therefore,  to  inform  you  that  the 
Government  adheres  to  its  former  declaration  that  no  ship  ofwar,  of 
whatever  nation,  will  be  expected  to  carry  into  or  out  from  any  port 
of  the  United  States,  which  is  either  occupied  by  their  forces  or  is  in 
possession  of  the  insurgents,  any  person  who  does  not  actually  be- 
long to  the  civil,  military,  or  naval  service  of  the  country  whose  flag 
that  vessel  carries,  and  especially  that  such  ships  of- war  shall  not, 
without  express  leave  of  the  military  authorities,  carry  into  or  out  of 
such  ports  any  citizen  of  the  United  States.  It  can  be  only  on  an  ex- 
pected compliance  with  these  terms  that  any  Ibreign  ship  of-war  can 
enter  ports  of  the  classes  I  have  designated  during  the  continuance 
of  the  present  civil  war." 

Ibid. 

If  there  be  no  prohibition,  the  ports  of  a  friendly  nation  are  consid- 
ered as  open  to  the  public  ships  of  all  powers  with  whom  it  is  at 
I)eace;  and  those  vessels  are  supposed  to  enter  such  ports  and  remain 
in  them  under  the  protection  of  the  Government  of  the  place.  Whether 
the  public  ships-of-war  of  one  nation  enter  the  ports  of  another  friendly 
nation  under  the  license  implied  by  the  absence  of  any  prohibition,  or 
under  an  express  stipulation  by  treaty,  they  are  equally  exempt  from 
the  local  jurisdiction. 

The  Excliange  v.  McFaddou,  7  Crauch,  116,  145.    (Seo  ThePizarror.  Matthias, 
ION.  y.  Leg.  01)  ,  97.) 

The  exemption  of  ibreign  public  ships  from  the  jurisdiction  of  the 
courts  of  the  United  States  is  not  founded  upon  any  notion  that  a 
foreign  sovereign  has  an  absolute  right,  in  virtue  of  his  sovereignty,  to 
an  exem])tion  of  his  property  from  the  local  jurisdiction  of  another  sov- 
ereign when  it  comes  Avithin  his  territory.  It  stands  upon  principles 
of  public  comity  and  convenience,  and  arises  from  the  presumed  con- 
sent or  license  of  nations,  that  foreign  public  ships  coming  into  their 
ports  and  demeaning  themselves  according  to  law  and  in  a  friendly 
manner  shall  be  exempt  from  the  local  jurisdiction.  But  as  such 
consent  and  license  is  imi)lied  only  from  the  general  usage  of  nations, 
it  may  be  withdrawn  upon  notice  at  any  time  without  just  oflense, 
and,  if  afterwards,  such  public  shii)s  come  into  our  ports  they  are 
amenable  to  our  laws  in  the  same  manner  as  other  vessels. 
The  Sautissima  Triuidad,  7  Wheaton,  283;  aff'd.,  1  Brock.,  478. 

Whatever  may  be  the  exemption  of  a  public  ship  herself,  nnd  of  her 
armament  and  munitions  of  war,  from  the  jurisdiction  of  the  courts  of 
the  United  States,  any  prize  i>roperty  which  she  brings  into  our  iiorts 
is  liable  to  such  jurisdiction  for  the  purpose  of  examination  and  inquiry, 
and,  if  a  proper  case  is  made  out,  for  restitution.  And  if  goods  are 
landed  from  the  public  ship  in  our  ports,  by  the  express  permission  of 
our  Government,  this  does  not  vary  the  case,  since  such  permit  in- 

137 


^S  3(J.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

volves  no  i»le(lj;e  that,  if  illei»ally  captured,  tbo  goods  shall  be  exempted 
lioui  the  ordinary  operation  of  the  laws  of  the  United  States. 

TlieSaiitissiiriii  Tiiiiidiul,  7  Wheat.,  )>S:%  :552. 

The  cases  of  the  Cassias,  ;i  Dallas,  121,  and  the  Invincible,  1  Wheatou, 
238,  decide  that  neither  a  public  vessel  of  another  nation,  nor  its  ofiflcei  s, 
are  liable  to  answer  in  our  courts  for  a  capture  on  the  high  seas,  but 
do  not  touch  the  (piestion  of  jurisdiction  over  her  prizes  lying  in  our 
])orts,  which  extends  to  libels  in  rem  for  restitution  of  such  prizes  made 
in  ^•iolation  of  our  neutrality. 

The  Santissiiiia  'I'liuidad,  7  Wheat.,  283. 

A  writ  of  habeas  corpus  may  be  awarded  to  bring  up  an  American 
subject  unlawfully  detained  on  board  a  foreign  ship-of-war,  the  com- 
niaiKk'r  being  amenable  to  the  usual  jurisdiction  of  the  state  where  he 
happens  to  be,  and  not  entitled  to  claim  the  extraterritoriality  which 
is  annexed  to  a  foreign  minister  and  to  his  domicil. 
I  Op.,  47,  Bra.lford,  1794. 

Criminal  and  civil  process  may  be  served  under  treaty  upon  a  person 
on  board  a  British  man-of-war  lying  within  our  territory. 

1  Oi).  87,  Lee,  1799. 

Foreign  armed  vessels,  adopting  the  character  of  merchant  ships  by 
carrying  merchandise,  render  themselves  subject  to  the  revenue  laws. 
1  Op.,  337,  Wirr,  1820. 

A  foreign  (British)  ship-of-war,  or  any  prize  of  hers  in  command  of  a 
public  officer,  possesses,  in  the  ports  of  the  United  States,  the  rights  of 
extraterritoriality,  and  is  not  subject  to  the  local  jurisdiction. 
7  Op.,  122,  Cuf^hiug,  1855. 

Hence  a  prisoner  of  war  on  board  such  a  foreign  ship-of  war,  or  of 
her  prize,  cannot  be  released  by  habeas  corpus  issuing  from  courts  of 
the  United  States  or  of  a  particular  State.  "  So  long  as  they  (the  pris- 
oners) remained  on  board  that  ship  they  were  in  the  territory  and  juris- 
diction of  their  sovereign.  There  the  n^itral  has  no  right  to  meddle 
with  them." 

But  if  such  prisoner  of  war  be  taken  on  shore,  he  becomes  subject  to 
the  local  jurisdiction,  or  not,  according  as  it  may  be  agreed  between 
the  i)oliti('al  authorities  of  the  belligerent  and  neutral  power. 
ih. 

[Mr.  Cushinjx  does  not  notice  in  the  above  case  the  opiuious  of  Mr.  Bradford 
and  Mr.  Lee  in  1  Op.,  47,  e7,  above  cited.  It  is  to  be  observed  that  Mr.  Lee 
bases  his  opinion  on  the  twenty-third  article  of  the  treaty  of  Loudon,  "that 
the  ships-of-war  of  each  of  the  contracting  parties  shall  at  all  times  be  hos- 
pitably received  in  the  ports  of  the  other;  their  officers  and  creivs paying  due 
respect  to  the  laws  and  Government  of  the  country.] 
138 


€HAP.  II.]  LAW    OF    PORT.  •  [§36. 

Ships  of- war  eujoy  the  full  rights  of  extraterritoriality  in  foreign  ports 
and  territorial  waters. 

8  Op.,  73,  Gushing,  1856. 

As  to  reciprocity  in  allowing  foreign  ships-of-war  in  United  States  ports  to  re- 
ceive goods  free  of  duty,  see  Mr.  Cadwalader,  Asst.  Sec.  of  State,  to  Mr. 
Washburn,  Oct.  14,  1876.     MSS.  Inst.,  France. 

As  to  hospitalities  to  ships  of  war,  see  Brit,  and  For.  St.  Papers,  1865-6,  vol.  56. 

The  sovereignty  of  the  flag  of  foreign  ships-of-war  is  not  only  con- 
ceded in  Euglaud,  where  the  rule  in  respect  to  merchant  ships  is  some- 
times contested,  but  it  is  held  to  apply  to  port  as  well  as  at  sea.  The 
rule,  says  Judge  Story,  in  an  opinion  adopted  by  Sir  li.  Phillimore  (I,  477), 
is  not  founded  on  any  notion  that  a  foreign  sovereign  has  an  absolute 
right,  in  virtue  of  his  sovereignty,  to  an  exemption  of  his  i)roperty 
Iroin  the  local  jurisdiction  of  another  sovereign  when  it  comes  within 
J  lis  territory,  lor  that  would  be  to  give  a  sovereign  power  beyond  the 
limits  of  his  own  empire.  But  it  stands  upon  princii)les  of  public 
comity  and  convenience,  and  arises  from  the  presumed  consent  or 
license  oi  nations,  that  foreign  public  ships  coming  into  home  ports 
and  demeaning  themselves  according  to  law,  and  in  a  friendly  manner, 
shall  be  exempt  from  the  local  jurisdiction.  "But  as  such  cousent  and 
license  are  implied  only  from  the  general  usage  of  nations  they  may 
be  withdrawn  upon  notice  at  any  time  without  just  oflense  ;  and  if  after- 
■wards  such  public  ships  come  into  our  ports,  they  are  amenable  to  our 
laws  in  the  same  nnmner  as  are  other  vessels."  But,  unless  withdrawn, 
it  is  ])resumed  to  be  conceded.  And  it  is  now  settled  that  foreign  iships- 
of-war  and  boats,  the  particular  iiroi)erty  of  a  foreign  sovereign,  are 
not  liable  to  process,  though  the  ships  or  boats  be  at  the  time  of  the 
i'ause  of  action  on  the  territorial  waters  of  the  state  of  process  (San- 
tissima  Trinidad,  ut  sup.).  A  state,  it  should  be  added,  is  interuittion- 
ally  entitled  to  exclude  from  its  ports  the  ships-of-war  of  other  nations 
or  to  limit  their  stay;  and  this  right  has  been  exercised  by  neutral 
states  as  to  belligerent  cruisers.  When  such  a  foreign  ship  enters  a 
Irieudly  port,  it  is  exempted  ordinarily  from  the  control  of  the  ]>ort 
])olice.  if  there  be  misconduct  on  board  such  ship  when  in  port  it 
may  be  required  to  leave  the  port  without  breach  of  international 
courtesy. 

See  authorities  cited  in  Whart.  Com.  Am.  Law,  §  190;  Twiss,  i,  §  158;  Blunt- 

schli,  §  321. 
As  to  asylum  given  to  belligerent  ships,  see  infra,  §  394. 
As  to  refusing  admission  into  territorial  waters  of  foreign  public  ships,  see  infra 

U  3156,  331. 

Ill  the  preamble  of  the  judgment  of  1872  by  the  Geneva  Tribunal  is 
the  following : 

''And  whereas  the  i^rivilege  of  extraterritoriality  accorded  to  vessels  of 
war  has  been  admitted  into  the  law  of  nations,  not  as  an  absolute  right, 
but  solely  as  a  ])roceeding  founded  ou  the  princii)le  of  courtesy  and 
mutual  deference  between  different  nations,  and  therefore  can  never  be 
appealed  to  for  the  protection  of  acts  done  in  violation  of  neutrality : " 
4  Papers  relating  to  Treaty  of  Washington.     (See,  as  to  award,  infra,  §  402a.) 

'•The  tribunal  of  arbitration  at  Geneva  held  that  'the  privilege  of 
exf^aterritoriality,  accorded  to  vessels  of  war,  had  been  admitted  into  the 

139 


§37.]  SOVEREIGNTY    OVER    WATER  [CHAP.  II.. 

liiw  ol  iiaiioiis.  not  as  an  absolute  right,  but  solely  as  a  proceeding 
loiiiMk'd  oM  the  principle  of  courtesy  and  mutual  deference  between. 
diftiMtMit  nations.'  Tliis  is  in  accordance  with  the  settled  jmictice  of 
tlie  ITiiitf'd  States.  Attorney-General  Lee,  in  the  early  days  of  the  Ke- 
])iiblic,  i^ave  his  opinion  that  it  is  lawful  to  serve  either  civil  or  criminal 
l)r(>cess  upon  a  person  on  board  a  British  man-of-war  lying  within  our 
territory." 

Mr.  J.  C.  B.  Davis.     Notes,  &c. 

But  this  i)retension  was  resisted  and  resented  by  the  United  States 
when  the  (3hesa])eake  was  "visited"  and  searched  by  the  Leopard  iu 
180'J  (see  infra,  §§  'Slob,  331),  and  was  withdrawn  by  the  British  Gov- 
ernment. 

See  criticism  in  Creasy's  Int.  Law,  177,  ff. 

In  the  Constitution  (40  L.  T.,  1^.  S.,  210)  it  appeared  that  the  Constitu- 
tion, a  United  States  vessel  of  war,  while  on  a  voyage  from  Havre  to  New 
York,  having  on  board,  among  other  things, goods  from  the  Paris  Expo- 
sition, ran  ashore  on  the  Welsh  coast,  when  salvage  services  were  ren- 
dered to  her.  Sir  E.  Phillimore  refused  to  allow  a  warrant  to  issue  for 
her  arrest,  or  for  the  arrest  of  the  goods  on  board  of  her,  at  the  salvor's 
suit.  The  claim  was  settled  by  voluntary  payment  by  the  United  States, 
who  resisted  the  issue  of  the  warrant  on  ground  of  principle.  'It  is 
clear,'  said  Sir  li.  Phillimore,  'upon  all  the  authorities  which  are  to  be 
found  in  the  case  of  the  Charkeih  (L.  R.,  4  Ad.  &  E.,39),  that  there  is 
no  doubt  as  to  the  general  proposition  that  ships-of-war  belonging  to 
another  nation  with  whom  this  Government  is  at  peace  are  exempt  from 
the  civil  jurisdiction  of  the  country.'  And  it  was  further  held  that  an 
unarmed  vessel  belonging  to  a  foreign  sovereign,  employed  by  him  on  a 
national  service,  is  not  subject  to  arrest." 

The  Parlernent  Beige,  L.  R.,  5  P.  D.,  97,  citin}^  also  Briggs  v.  Light-Boats,  11 
Allen,  157.     (See,  also,  The  Pizarro,  10  N.  Y.  Leg.  Ob.,  97.) 

XIV.   OPPRESSIVE  PORT  EXACTIONS. 
§  37. 

"You  will  state  that  this  Government  does  not  question  the  right  of 
every  nation  to  jirescribe  the  conditions  on  which  the  vessels  of  other 
nations  may  be  admitted  into  her  ports.  That,  nevertheless,  those  con- 
ditions ought  not  to  conflict  with  the  received  usages  which  regulate 
the  commercial  intercourse  between  civilized  nations.  That  those 
usages  are  well  known  and  long  established,  and  no  nation  can  disre- 
gard them  without  giving  ju.st  cause  ofcomi)laint  to  all  other  nations 
whose  interests  would  be  ati'ected  by  their  violation. 

"  That  the  circumstance  of  an  officer  of  a  vessel  having  i)ublished,  in 
his  own  country,  matters  offensive  to  a  foreign  Government  does  not, 
according  to  those  usages,  furnish  a  sufficient  cause  for  ex(;luding  such 
vessel  from  the  i)orts  of  the  latter     *     *     * 

"  That  the  steamers  employed  in  transporting  the  mail  from  this  coun- 
try to  Havana,  being  in  the  employment  of  Government,  and  placed  by 
140 


CHAP.  II.]  PORT   EXTORTIONS.  [§  37. 

law,  to  a  certain  extent,  under  its  control,  partake,  in  some  degree,  of 
the  character  of  public  vessels." 

Mr.  CoDrad,  Acting  Sec.  of  State,  to  Mr.  Barringer,  Oct.  28,  1852.     MSS.  Inat., 
Spain. 

"It  has  become  necessary  again  to  instruct  you  to  call  the  attention  of 
the  Spanish  Government  to  the  onerous  burdens  to  which  the  trade  of 
the  United  States  is  subjected  by  reason  of  the  system  of  fines  imposed 
by  the  customs  authorities  of  Cuba. 

"The  able  manner  in  which  you  have  already  presented  the  subject 
in  your  notes  of  the  16th  July,  1870,  and  28th  of  November,  1872,  makes 
it  unnecessary  for  me  to  repeat  or  to  dwell  upon  the  facts  of  which  our 
«hip  owners  and  masters  complain.  The  printed  memorandum  which 
is  inclosed  shows  the  present  condition  of  the  question.  The  remedy 
which  the  ship-owners  of  the  United  States  desire  cannot  be  better 
stated  than  in  the  language  of  the  following  extract  from  the  memorial 
which  forms  part  of  the  inclosed  memorandum : 

"  The  Spanish  laws  require  that  a  vessel  bound  for  Cuban  ports  shall 
make  out  manifests  of  cargo,  the  same  to  be  certified  by  the  Spanish 
consul  residing  at.  or  nearest  to,  the  port  of  loading,  in  which  mani- 
fest the  captain  must  declare  positively,  and  without  qualification,  the 
several  and  diflerent  kinds  of  i)ackages,  their  marks,  the  generic  class 
of  contents,  as  well  as  the  weights  and  values  of  same,  and  for  every 
instance  where,  on  arrival  in  Cuba,  the  examination  of  the  cargo  shows 
a  difference  between  the  packages  and  the  weights,  and  contents  of 
same  as  actually  found  and  the  same  as  manifested,  the  vessel  is  fined, 
while  the  goods  escape  all  responsibility. 

"That  although  the  generic  class  of  the  goods  is  stated  ou  the  mani- 
fest, in  compliance  with  the  requirements  of  the  Spanish  laws,  and  said 
manifests  accepted  and  certified  to  by  the  Spanish  consul,  yet  the 
vessel  is  fined  for  not  stating  the  specific  class. 

"That  we  are  entirely  dependent  on  shippers  of  cargoes  for  informa- 
tion as  to  weights,  values,  and  contents  of  packages  shipped  from 
which  to  make  out  manifests,  and  irresponsible  parties  often  give  erro- 
neous descriptions  of  their  part  of  cargo,  resulting  in  fines  imposed 
on  the  vessels,  at  times  greatly  in  excess  of  the  freight,  against  which 
we  have  no  redress. 

"That  the  customs  authorities  at  the  several  ports  in  Cuba  jdace 
different  constructions  on  the  laws  relative  to  vessels,  and  the  mani- 
fests of  same,  and  fines  have  been  imposed  in  one  port  for  stating  that 
for  which  fines  were  imposed  in  another  port  for  omitting. 

"That  the  caprain  is  only  informed  of  any  fines  imposed  ou  his 
vessel  when  he  attemi)ts  to  clear  her  at  the  custom-house,  whereby  he 
has  either  to  pay  the  fines  or  detain  the  vessel  indefinitely  while  con- 
testing the  same. 

"That  although  we  are  willing  and  endeavor  to  comply  with  the  said 
laws    regulating    manifests,   yet,   under    the    conflicting    instructions 

141 


§  37.]  SOVEREIGNTY  OVER  WATER  [CHAP.  11. 

placed  on  same  by  the  differeut  collectors  of  customs  in  Cuba,  we  find 
it  impossible  to  do  so,or  to  avoid  fines. 

"  In  cases  where  fines  are  imposed,  an  appeal  to  the  superior  author- 
ities at  Uavaua  is  permitted  on  i)ayment,  under  x^rotest,  of  said  fines; 
but  unless  the  amount  of  such  fine  is  excessive  the  delay  occasioned 
by  the  detention  of  the  vessel  would  exceed  in  most  cases  the  amount 
of  such  fine  even  if  recovered. 

"  AVe  would  respectfully  repi'esent  to  the  Department  that  as  the 
vessel,  throujjfh  her  agents,  is  entirely  dependent  on  the  shippers  of 
cargo  for  information  necessary  to  describe  on  the  manifest  the  con- 
tents and  weights  of  packages  shipped,  the  propriety  of  imposing  fines 
on  the  goofh  erroneously  described  on  manifest,  instead  of  on  the  vessel, 
as  then  the  shipper  would  have  a  sure  remedy'  against  the  vessel  iu 
case  of  error  on  her  part,  or  on  the  part  of  her  agents,  in  making  out 
manifests,  while  under  existing  regulations  it  is  in  most  cases  almost, 
if  not  impossible,  for  the  vessel  to  recover  the  amount  of  fines  from 
the  shipper. 

"These  objections  and  suggestions  appear  to  be  reasonable,  moder- 
ate, and  just.  It  has  therefore  been  determined  both  to  instruct  yoti 
to  use  your  best  endeavors  to  secure  the  modifications  and  changes 
which  the  ship-owners  desire,  and  also  to  endeavor  to  secure  a  similar 
and,  as  far  as  possible,  identical  action  on  the  part  of  the  British,  Ger- 
man, and  Swedish  and  Norwegian  Governments,  whose  commerce  also 
is  afiected  by  these  rules  and  regulations. 

"  You  will  therefore  confer  with  the  British,  German,  and  Swedish 
and  Norwegian  ministers  at  Madrid,  in  the  hope  that  they  may  receive 
instructions  which  may  enable  each  to  frame  a  note  to  be  addressed  by 
each  seT)arately  to  the  Spanish  minister  for  foreign  affairs  on  the  sub- 
ject, which  may  be  simultaneous,  if  not  identical.  Should  they  or 
either  of  them,  under  instructions  from  their  Governments,  decline  to 
act,  you  will  nevertheless  address  a  note  yourself  upon  the  subject, 
and  spare  no  reasonable  efforts  to  induce  the  Spanish  Government  to 
accede  to  the  requests  you  are  instructed  to  make." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  March  21,  1873.  MSS.  lust.,  Spain  ;  For. 
Rel.,  1873.  Accompanying  thi.s  iustrucf  iou  are  several  valuable  documeuts 
relative  to  the  questions  divscnssed. 

"The  undersigned,  Secretary  of  State  of  the  United  States,  has  the 
honor  to  ack)iowledge  the  receipt  of  the  note  of  Mr.  Preston,  envoy 
extraordinary  and  minister  plenipotentiary  of  Hayti,  of  the  16th 
instant. 

"  It  states  that  his  Government  has  thought  proper  to  transfer  to  its 
legation  in  this  country  the  discussion  which  has  heretofore  been  carried 
on  with  the  legation  of  the  United  States  at  Port  au  Prince,  relative  to 
the  act  of  the  Haytian  Congress  of  the  23d  of  August,  1877,  authoriz- 
ing certain  charges  by  the  consuls  of  that  Eepublic  abroad  on  exporta- 
142 


CHAP.  11. J  PORT    EXTORTIONS.  [<5  37. 

tious  from  foreign  coautries  to  Hayti.  With  a  view  to  show  that  those 
charges  are  not  incompatible  with  the  treaty  between  the  United  States 
and  that  Kepublic,  Mr.  Preston  quotes  several  articles  of  that  instru- 
ment. These,  however,  are  general  in  their  terras  and  appear  to  have 
no  special  reference  to  the  question  at  issue. 

"According  to  the  preamble,  one  of  the  main  objects  of  tbe  treaty 
was  to  place  the  commercial  relations  between  the  two  countries  upon 
the  most  liberal  basis. 

"  The  act  of  the  Haytian  legislature  referred  to  cannot  be  regarded  as 
in  conformity"  with  that  stipulation.  It  authorizes  the  consuls  of  that 
Eepublic  to  charge  exorbitant  fees  on  exportations  from  the  United 
States ;  among  others,  1  per  cent,  on  the  value  of  cargo  of  the  vessel. 
This,  besides  being  illiberal  in  its  character,  is  tantamount  to  an  export 
duty,  acquiescence  in  which  by  this  Government  would  be  a  concession 
to  that  of  Hayti  of  an  authority  in  ports  of  the  United  States  which 
has  not  been  conferred  on  this  Government  by  the  Constitution. 

"  There  is,  however,  a  clause  in  the  thirteenth  article  of  the  treaty, 
one  of  those  cited  by  Mr.  Preston,  which  seems  to  have  a  direct  ai)pli- 
cation  to  the  point  in  dispute. 

"  If  the  Haytian  consular  charges  in  the  United  States  are  so  con- 
siderable as  virtually  to  be  an  export  tax,  this  would  in  eifect  contra- 
vene the  stipulation  which  declares  that  no  higher  duties  or  charges 
shall  be  imposed  in  the  United  States  on  the  exportation  of  any  article 
to  Hayti  than  such  as  shall  be  payable  on  the  exportation  of  the  like 
article  to  any  foreign  country.  This  clause  is  unconditional,  and  not 
only  forbids  this  Government  from  levying  any  such  tax,  but  also  a 
consul  of  Hayti  at  a  port  of  the  United  States. 

"The  preamble  to  the  Haytian  law  in  question  expressly  acknowl- 
edges that  one  of  its  objects  was  to  benefit  the  treasury  of  that  Eepublic. 
Several  of  the  other  charges  which  it  authorizes  appear  to  be  excessive. 
Such  charges  may  not  be  uniform  as  prescribed  by  the  laws  of  different 
countries.  It  is  believed,  however,  that  no  other  than  Hayti  has 
authorized  them  to  sucli  an  extravagant  amount  as  that  provided  for 
by  the  law  referred  to,  or  has  required  an  export  tax  on  merchandise. 
This  Department  had  hoped  that  the  remonstrances  on  the  subject 
which  had  been  addressed  to  that  Government  through  the  United 
States  legation  in  Hayti  would  ere  this  have  led  to  a  repeal  or  modifi- 
cation of  that  statute.  This  hope  has,  however,  been  disappointed, 
but  as  the  charges  complained  of  are  believed  to  work  a  serious  dis- 
couragement to  trade,  it  is  hoped  that,  as  the  Haytian  Government  is 
understood  to  be  adverse  to  a  policy  leading  to  such  a  result,  it  will  no 
longer  delay  removing  the  cause  of  the  grievance. 

"It  is  believed  that  Mr.  Preston  is  mistaken  in  saying  that  the  United 
States  is  the  only  Government  which  has  complained  of  the  effect  of  the 
statute  referred  to.     According  to  reports  from  the  legation  of  this 

143 


^S  o7.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  11. 

coiuilr.v    ill   llayti,   ro|)reseutatives   of    otber  Governments  have  also 
pointeilly  complained  to  tbe  same  effect." 

Mr.  Evarts,   S<'c.  of  State,  to  Mr.  Preston,  Jan.  22,  1879;  MSS.     Notes  Hayti; 
For  Rel.,  1871).     (Seo  same  to  same,  April  19,  1879,  id.;  June  13,  1879,  id.) 

"  IJereriing-  to  your  note  of  the  9th  of  JMay  last,  and  my  acknowl- 
edjiiiieiit  thereof  on  the  13th  of  the  same  month,  in  relation  to  theHay- 
tiaii  tariff' of  consular  fees  under  the  decree  of  August  23,  1877,  and  to 
tlie  i)r()tests  of  the  representatives  at  Port  au  Prince  of  the  United  .States, 
Great  liritaiii,  Germany,  and  France,  and  the  reply  of  the  Haytian  Gov- 
orninent  thereto,  I  have  now  the  honor  to  communicate  to  you,  in  con- 
formity with  the  desire  expressed  by  the  Marquis  of  Salisbury  the  views 
of  this  Government  in  relation  to  that  questien. 

"  The  Government  of  Hayti,  prior  to  the  reply  of  the  6tb  of  March  last 
to  the  foreijxn  representatives  named,  had  seen  fit  on  the  4th  of  Febru- 
ary to  transfer  the  discussion  of  the  question  to  Washington,  so  far  as 
this  Government  was  concerned,  by  a  very  full  and  argumentative  note, 
addressed  to  me  by  Mr.  Stephen  Preston,  the  Haytian  minister  in  this 
country.  Although  much  more  extended,  the  note  of  Mr.  Preston  in 
the  main  merely  repeats  and  reaflBrms  the  reasoning  and  conclusions  of 
the  communications  made  to  the  foreign  representatives  by  M.  Etheart, 
and,  like  thor>e,  they  appeared  to  tbis  Government,  as  weH  as  to  that  of 
Her  Majesty,  as  appears  from  your  note,  to  be  altogether  unsatisfactory, 
and  reply  was  so  made  to  Mr.  Preston  on  the  13th  ultimo.  In  that  re- 
jdy  the  Haytian  minister  was  informed,  with  respect  to  that  portion  of 
his  note  which  related  to  tbe  authentication  by  the  consular  officers  of 
Hayti  in  tbis  country  of  the  invoices  of  tbe  cargoes  of  vessels  bound  to 
tbe  ports  of  that  country,  that  the  charge  of  1  percent,  on  values  for  that 
proceeding  is,  after  the  most  deliberate  consideration,  believed  to  be  un- 
duly exorbitant,  and  tantamount  to  an  export  tax,  which  it  does  not 
comport  with  the  dignity  of  this  Government  to  allow  to  be  exacted  by 
any  foreign  authority  within  tbe  jurisdiction  of  the  United  States.  It 
was  asserted  that,  even  if  the  exaction  in  the  form  in  which  it  is  im- 
posed were  moderate  and  unobjectiouable  as  to  amount,  still,  if  it  were 
once  acquiesced  in  this  would  be  a  bar  to  any  objection  which  this  Gov- 
ernment might  made  if  the  (.'onsular  fee  were  afierwiird  to  be  much  aug- 
mented. The  inexpediency  of  sul)jecting  exports  from  this  country  to 
Hayti  to  a  tax  of  tbe  kind  was  further  illustrated  by  the  (consideration 
that,  owing  to  tbe  dangers  of  tbe  sea  and  other  causes,  many  cargoes 
<lo  not  reach  their  destination. 

''The  Government  of  the  United  States,  being  by  its  Constitution 
expressly  prohibited  from  levying  an  export  tax,  it  cannot  allow  any 
f.)reigii  jtower  to  exercise  here,  in  substance  or  in  form,  a  right  of  sov- 
ereignty denied  to  itself.  Xo  denial  was  made  of  the  right  of  the  Hay- 
tian Government,  at  its  discretion,  so  tar  as  tbis  may  not  have  been  lim- 
ited by  treaty,  to  impose  duties  on  the  cargoes  of  vessels  from  thiscouu- 


CHAP.  II.]  POKT    EXTOKTI02s8.  [§  37. 

try  arriving  in  Haytian  ports,  but  it  was  complained  most  positively 
that  the  present  grievance  of  a  consular  fee  of  this  cluinicter  exacted  in 
our  ports  is,  in  its  form,  derogatory  to  tbe  sovereignty  of  the  United 
States,  and  that  this  character  wats  not  removed  from  it  by  the  Haytian 
citation  of  the  axioms  of  political  economy  that  all  duties  are  ultimately 
j)aid  by  the  consumer.  In  view  of  all  this,  it  was  hoped  tliat  the  Hay. 
tian  Government  would  see  the  expediency  of  changing  its  regulations 
upon  that  subject  without  any  unnecessary  delay." 

Mr.  Eviirts,  Sec.  of  State,  to  Sir  E.  Tliorntou,  July  14,  1879.     MSS.  Notes.  Gr. 
Biit.;  For.  Eel.,  1879. 

"  In  Mr.  Blaine's  instruction  to  you  of  the  23d  of  November  last  con- 
cerning the  long  pending  and  still  unsettled  claim  of  the  owners  of  the 
bark  Masonic,  some  general  observations  were  submitted  in  regard  to 
the  arbitrary  and  unjust  surveillance  exercised  towards  American  mer- 
chant vessels  in  Spanish  colonial  ports.  These  suggestions  of  my  pre- 
<lecessors  were  made  in  the  mutual  interest  of  American  and  Spanish 
commerce,  and  in  promotion  of  the  friendly  relations  which  have  so 
long  subsisted  between  the  two  nations.  Since  that  instruction  was 
forwarded  three  other  cases  of  less  ])ecuniary  magnitude,  but  of  scarcely 
less  hardship,  have  been  brought  to  the  attention  of  the  Department. 
In  regard  to  each  of  these,  instructions  have  also  been  forwarded  to 
your  legation,  but  as  pertinent  to  the  subject  of  this  instruction  it 
seems  proper  to  advert  briefly  to  the  facts  upon  which  they  rest. 

"  The  American  brig  George  W.  Chase  was  fined  $50  in  November 
last  by  the  customs  authorities  at  Sagua,  the  sole  ground  for  the 
fine  being  an  omission  of  certain  words  in  a  manifest.  The  clause 
of  the  document  being  "  900  bundles  of  hoops  40  feet  long  [40  hoo])s 
in  each  bundle],"  the  words  inclosed  in  brackets  were  inadvertently 
omitted  by  the  Spanish  consul  at  Philadelphia,  who  transcribed  the 
document;  and  although  the  officer  in  question  certified  as  to  the  mis- 
take, the  imposition  of  the  fine  was  nevertheless  adhered  to.  The  sec- 
ond case  [brought  to  attention  hj  No.  1090  of  YiceConsulGeneral 
Williams]  is  that  of  the  steamer  Ellie  Knight,  which  entered  the  port 
of  Havana  wi-h  a  cargo  of  cattle  from  Mobile  and  Key  West,  on  the 
27th  December  last,  having  on  board  60,000  feet  of  lumber  destined  for 
Key  West,  but  which  was  kept  on  board  as  ballast  while  crossing  the 
Gulf.  As  a  cattle  carrying  boat  the  steamer  was  chargeable,  under  the 
Spanish  laws  and  revenue  regulations  governing  the  ports  of  Cuba,  to 
a  tonnage  duty  of  5  cents  per  ton.  which  would  have  made  the  charge 
$14.90,  but,  instead  of  this,  the  customs  officers,  on  account  of  the  60,000 
feet  of  lumber,  assessed  a  duty  of  $l..')0  i)er  ton,  making  the  amount  on 
the  vessel's  tonnage  $.'387.40,  an  excess  of  $372.50. 

"  Still  another  and  more  recent  case  was  that  of  the  steamer  Santiago, 
of  New  York,  a  vessel  regularly  engaged  in  the  trade  between  New 
York  and  the  i)orts  of  Santiago  de  Cuba  and  Cienfuegos,  on  the  south 
S,  Mis.  162— YOL.  I 10  '  145 


§  37.]  SOVKEEIGNTY    OVER    WATER.  [CHAP.  II. 

side  of  the  islaud  of  Cuba.  Under  circumstances  of  great  appari'nt 
hardship,  a  fine  of  $1,900  was  imposed  on  the  vessel,  and  the  master, 
(':iptaiu  Pliillii)s,  was  obliged  to  execute  a  bond,  with  sureties  for  the 
amount,  in  order  to  secure  a  clearance  for  his  vessel. 

"  In  ea(;h  of  these  cases  instructions  have  been  forwarded  to  you,  and 
the.v  are  adverted  to  here  only  as  being  pertinent  to  the  general  sub- 
ject of  this  instruction. 

"  They  are  examples  of  many  similar  occurrences  to  American  vessels 
in  the  colonial  i)orts  of  Spain.  Hitherto  the  consul-general  of  the 
United  States  at  Havana  has  been  able  to  secure  an  adjustment  of  such 
cases  by  prosecuting  the  complaints  to  the  superior  authorities  at  that 
])ort,  and  eflbrts  looking  towards  the  same  end  were  made  by  that  officer 
in  each  of  the  cases  referred  to.  He  was  met,  however,  with  the  an- 
nouncement that  under  an  existing  ordinance,  the  strict  observance  ot 
which  has  been  reeujoined  by  a  royal  order  recently  promulgated  in 
Cuba,  the  local  authorities  can  no  longer  deal  with  such  questions,  but 
that  tliey  must  be  remitted  for  settlement  to  the  Government  at  Madrid. 
The  adoption  of  this  course  of  procedure  b3^  Spain  has  very  much  ag- 
gravated this  general  grievance  to  American  commerce.  Complaints 
of  such  instances  have  of  late  become  so  frequent  from  owner§  and 
masters  of  American  vessels  that  the  question  demands  the  most  serious 
attention  of  this  Government.  The  President  therefore  directs  me  to 
instruct  you  to  bring  the  question  to  the  attention  of  His  Catholic 
Majesty's  Government,  and  in  doing  so  you  will  request  that  authority 
shall  be  given,  either  to  the  captain-general  in  Cuba  or  to  His  Majesty's 
minister  at  this  capital,  to  consider  such  cases  and  grant  redress  when 
necessary.  The  arbitrary  conduct  of  subordinate  officials  in  Cuba  can- 
not be  submitted  to  without  retaliation  on  Spanish  vessels  and  com- 
merce, unless  there  is  secured  a  more  speedy  remedy  than  is  afforded  by 
resort  to  Madrid." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Hamliu,  Feb.  15,  1882.     MSS.  Inst., 
Spain;  For.  Rel.,  1882. 

"  Mr,  James  McKay,  a  citizen  of  the  United  States  resident  in  Monrof 
County,  Florida,  and  who  is  extensively  engaged  in  feeding  and  ship 
l)ing  cattle  to  Cuban  markets,  has  recently  brought  to  the  attention  of 
the  Depiutment  a  i)ractice  pursued  by  the  Spanish  consul  at  Key  West, 
in  regard  to  shipments  from  that  port  to  Havana  and  other  Cuban 
ports,  which  results  in  annoyance,  inconvenience,  and  serious  losses  to 
himself  and  other  American  citizens. engaged  in  similar  business. 

"  It  appears  from  Mr.  McKay's  letter  of  the  22d  of  June  last  to  the 
Department,  that  the  Spanish  consul  at  Key  West,  in  pursuance,  as 
that  officer  alleges,  of  instructions  from  his  Government,  exacts  and 
collects  from  Mr.  McKay  and  other  American  cattle  shippers  40  cents 
a  head  on  all  cattle  shipped  by  them  from  the  State  of  Florida  to  Cuba. 
This  is  in  addition  to  the  ordinary  and  usual  consular  fees  charged  and 
146 


CHAP.  II.]  PORT    EXTORTIONS.  [§  37. 

collected  for  clearing  the  vessel,  certifying  papers,  and  such  other 
charges  as  may  properly  be  made  by  the  consul  in  connection  with  such 
shipments.  On  these  same  cattle,  when  landed  on  the  island  of  Cuba, 
Mr.  McKay  and  the  other  shippers  situated  like  him  have  to  pay  an 
import  duty  of  $6  per  head.  Of  this  import  duty  paid  in  Cuba,  how- 
ever onerous  it  may  be,  they  make  no  complaint,  recognizing  the  right 
of  the  Spanish  Government  to  impose  and  collect  within  its  own  terri- 
torial jurisdiction  such  duties  as  it  may  deem  proper  under  its  own  mu- 
nicipal laws,  provided  it  does  not  transcend  the  limits  of  treaty  stipu- 
lations. 

"In  the  letter  referred  to,  Mr.  McKay  transmits  thirteen  protests 
made  by  him,  before  a  notary  public,  in  relation  to  as  many  shipments, 
giving  in  each  case  the  name  of  the  vessel,  the  number  of  cattle  in  the 
cargo,  the  date  of  shipment,  and  the  gross  amount  of  head-tax  charged 
on  each  shipment.  Thus,  on  the  22d  of  April,  1882,  on  the  steamship 
Alabama,  from  Key  West  to  Havana,  451  head  of  cattle,  upon  which  he 
paid  to  the  consul  in  question  $180.40,  and  so  on  through  all  the  others, 
varying  only  in  the  number  of  cattle  in  each  cargo  and  the  gross  amount 
of  tax  paid.  A  subsequent  letter  from  McKay  on  the  19th  ultimo  in- 
closes ten  similar  documents.  These  twenty-three  protests  represent 
as  many  shipments  made  by  him  from  Key  West  to  Havana  between 
the  22d  of  April  and  the  7th  of  Augusi  of  the  present  year,  and  em- 
bracing 10,967  head  of  cattle,  upon  which  Mr.  McKay  has  paid  to  the 
Spanish  consul  at  Key  West,  at  40  cents  a  head,  $4,386.80,  and  when 
the  $6  a  head  paid  upon  their  being  landed  at  Havana  ($05,802)  is 
added,  it  is  seen  that  this  one  American  shipper  has  been  obliged  to 
pay  to  the  Spanish  Government  the  sum  of  $70,188.80  before  he  gets  his 
cattle  into  the  Cuban  market. 

"  It  is  not  conceivable  that  the  Government  of  Spain,  a  country  whose 
history  and  traditions  are  so  intimately  and  so  justly  identified  with  the 
growth  and  progress  of  the  world's  commerce,  could  intend  this  charge 
of  40  cents  a  head  as  a  restriction  on  the  commerce  of  the  United  States. 
The  long  and  unbroken  friendship  existing  between  the  two  countries 
forbid  such  an  interpretation  of  the  policy  of  His  Catholic  Majesty's 
Government. 

"  The  charge,  nevertheless,  under  whatever  supposed  right  or  neces- 
sity on  the  part  of  Spain  it  may  be  imposed,  is  in  effect  such  a  restric- 
tion, and  is  a  burden  so  onerous  on  American  citizens  engaged  in  that 
rapidly  increasing  branch  of  American  commerce  as  must  in  time  have 
the  effect  of  excluding  them  from  the  Spanish  colonial  markets  of  Cuba. 
It  is  a  charge,  moreover,  upon  whatever  ground  it  may  be  placed,  that 
is  in  itself  anomalous.  N"o  other  Government  with  which  the  United 
States  hold  commercial  relations  attempts  to  make  or  enforce  any 
similar  tax  or  charge  in  the  ports  of  the  United  States,  and  it  is  almost 
superfluous  to  state  that  the  consular  officers  of  the  United  States  are 
not  authorized  to  make  any  similar  charges  in  the  ports  of  Spain  or  her 

147 


§  37.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

transatlantic  colonies  on  any  goods,  the  produce  of  those  countries, 
destined  for  ports  of  the  United  States.  The  remedy  for  this  evil  is 
with  the  Spanish  Government.  It  may  in  its  hands  be  made  simple, 
adequate,  and  immediate  by  putting  an  end  to  the  i)ractice,  and  in  the 
present  case  reimbursing  to  Mr.  McKay  the  amount  he  has  already 
]>aid,  which,  as  shown  at  present,  is  $4,386.80. 

''  The  alternative  left  to  this  Government  in  case  that  of  Spaiu  shall 
fail  to  give  the  subject  prompt  and  just  consideration,  is  one  that  is  not 
contempleted  with  satisfaction;  that  is,  a  similar  charge  on  colonial 
jiroduct  of  Spain  shipped  by  Spanish  subjects  from  the  ports  of  their 
own  country  to  the  United  States.  A  simple  statement  of  the  present 
status  of  the  commerce  between  the  United  States  and  these  colonies  is 
suiiicient  to  show  how  detrimental  such  a  measure  would  be  to  the  com- 
mercial interests  of  the  colonial  subjects  of  His  Catholic  Majesty. 

"  In  1880  the  imports  of  the  United  States  were,  from  Cuba, 
$05,423,000;  all  other  Spanish  colonial  ports,  $12,214,000.  Exports 
from  United  States  to  these  same  places  in  that  year — Cuba,  $11 ,000,000; 
to  all  other  colonial  ports,  $2,000,000.  For  1881,  exi>orts  from  Cuba, 
$03,000,000;  from  all  other  Spanish  colonial  ports,  $12,000,000.  Ex- 
ports from  the  United  States  to  Cuba,  $11,000,000." 

Mr.  J.  DaTis,  Acting  Sec.  of  State,  to  Mr.  Hamlin,  Sept.  4,  1882.     MSS.  lust., 
Spain ;  For.  Rel.,  1882.      • 

"  Your  dispatch  No.  52,  of  the  6th  of  June  last  was  duly  received, 
though  it  does  not  appear  to  have  been  hitherto  acknowledged.  It  is 
accompanied  by  a  copy  of  the  note  of  the  minister  for  foreign  affairs 
to  you  of  the  29th  of  May,  in  which  he  seeks  to  justify  the  tax.  The 
Department  concurs  in  the  view  of  the  matter  taken  in  your  dispatch. 
That  the  application  of  the  tax  to  vessels  clearing  to  colonial  ports 
was  a  mere  extension  of  a  tax,  exacted  since  1874,  to  vessels  .clearing 
for  ports  in  the  peninsula,  seems  to  be  an  invasion  of  the  point  at 
issue.  Our  complaint  is  that  as  our  commercial  intercourse  with  Spain 
is  mainly  with  her  possessions  in  this  hemisphere,  exorbitant  consular 
charges  on  United  States  vessels  and  their  cargoes  bound  to  such 
ports  are  virtually  an  export  tax,  which  assuredly  no  foreign  Govern- 
ment can  be  allowed  to  exact  in  our  ports,  especially  as  such  a  power 
has  not  been  granted  to  this  Government.  If,  however,  as  the  minis- 
ter says,  it  will  be  necessary  for  the  legislature  of  Spain  to  correct  the 
evil  of  which  we  complain,  it  is  hoped  that  the  executive  Government 
of  that  country  will  exert  all  proper  influence  towards  having  the  de- 
sired change  effected.  This  is  a  measure  which  may  be  deemed  neces- 
sary, not  only  for  improving  commercial  intercourse  between  the  two 
countries,  but  also  for  strengthening  the  good  feeling  between  them. 
It  can  never  be  expected  that  the  people  of  this  country  will  acqui- 
esce in  the  levy  here  by  the  agents  of  a  foreign  Government  of  any 
charges  whicli,  in  their  amount  or  character,  may  be  tantamount  to  ho 
export  tax. 

X43 


CHAP.  II.]  PORT    EXTORTIONS.  [§  37. 

"A  controversy  on  a  similar  subject  took  place  a  few  years  since 
between  this  Government  and  tbat  of  Hayti.  A  copy  of  the  two  prin- 
cipal instructions  in  regard  to  the  subject  from  Mr.  Evarts  to  the 
minister  of  the  United  States  in  that  country  is  transmitted  for  your 
information. 

<'  The  Haytian  Government  ultimately  repealed  the  obnoxious  tax." 

Mr.  Frclinghuysen,  Sec.  of  State,  to  Mr.  Hamlin,  Sept.  22,  1882.     MSS.  Inst., 
Spain;  For.  Rel.,l>-82. 

"  Mr.  Hamlin's  No.  100,  of  the  12th  ultimo,  has  been  received.  His 
course  in  presenting  our  complaint  against  the  consular  fee  of  40 
cents  per  head  on  cattle  shipi)ed  from  our  i)orts  to  the  Antilles  (as 
set  forth  in  Mr.  Davis's  No.  94)  as  resting  on  the  same  basis  as  the  pre- 
vious complaint  concerning  the  exaction  of  a  consular  fee  of  10  cents 
per  ton  on  invoiced  cargo,  conforms  to  the  intention  of  the  Depart- 
ment; and  his  note  of  26th  of  September  to  the  Marquis  de  la  Vega' 
is  approved  as  a  forcible,  and,  it  is  hoped,  conclusive  exposition  of  our 
case. 

"  The  two  classes  of  charge  are  of  the  same  nature,  and  are  opposed 
by  us  as  being  a  revenue  charge  levied  in  our  ports,  not  for  services 
rendered  by  the  consul  or  proportionate  to  such  services,  but  as  in 
effect  an  export  tax.  It  cannot  adequately  be  met  by  saying  (as  has 
been  said  in  past  discussion)  that  our  consular  fees  for  authenticating 
invoices  may,  when  these  are  numerous,  amount  to  a  heavy  charge, 
exceeding  that  in  the  case  of  a  single  moderate  cargo  when  com])rised 
in  one  invoice  and  assessed  at  10  cents  a  ton.  The  service  performed 
by  the  consul  is  one  required  by  law  for  the  protection  of  the  revenue 
at  the  port  of  entry,  and  involves  ascertainment  of  the  bona  fides  and 
responsibility  of  the  exporter,  and  the  substantial  accuracy  of  the 
stateiueiits  contained  in  the  invoice  and  sworn  declaration  therewith. 
This  service  is  uniform  in  all  cases,  and  neither  the  consul's  labor  nor 
his  responsibility  are  measurable  by  the  weight  of  the  merchandise  in- 
voiced or  the  number  of  pieces  of  which  it  is  composed.  It  would  ap- 
parently be  as  tenable  for  Spanish  legislation  to  assess  an  ad  valorem 
tax  for  the  verification  of  an  invoice.  No  basis  of  consular  fees  which 
depends  on  the  weight,  size,  amount,  or  value  of  the  merchandise,  and 
disregards  the  specific  clerical  or  administrative  act  done,  can  be  in 
principle  anything  short  of  an  export  tax  levied  in  the  jurisdiction  of 
another  state." 

Mr.  Frelinghuysen,   Sec.  of  State,   to  Mr.  Reed,   Nov.  10,  1882.     MSS.  Inst., 
Spain;  For.  Rel.,  1882. 

"  I  have  alluded  in  my  previous  messages  to  the  injurious  and  vexa- 
tious restrictions  suffered  by  our  trade  in  the  Spanish  West  Indies. 
Brazil,  whose  natural  outlet  for  its  great  national  staple,  coffee,  is  in 
and  through  the  United  States,  imposes  a  heavy  export  duty  upon  that 
product.     Our  petroleum  exports  are  hampered  in  Turkey  and  in  other 

149 


\  ;;7.]  SOVEREIGNTY    OVER    WATER.  [vUAP.  JI. 

Eastern  ports  h.y  ifstiictious  as  to  storage  and  by  onerous  taxation. 
For  these  mischiefs  adequate  relief  is  not  always  afforded  by  reci- 
procity treaties  like  that  with  Hawaii  or  that  lately  negotiated  with 
Mexico  and  now  awaiting  the  action  of  the  Senate.  Is  it  not  advisable 
to  provide  some  measure  of  equitable  retaliation  in  our  relations  with 
Governments  which  discriminate  against  our  own?'  If,  for  example, 
the  Executive  were  empowered  to  apply  to  Spanish  vessels  and  cargoes 
from  Cuba  and  Puerto  Kico  the  same  rules  of  treatment  and  scale  of 
l)enalties  for  technical  faults  which  are  applied  to  our  vessels  and  car- 
goes in  the  Antilles,  a  resort  to  that  course  might  not  be  barren  of  good 
results." 

President  Arthur,  tliird  aimnal  message,  1883. 

"You  have  yourself  already  made  known  to  the  President  several  very 
convincing  reasons  why  the  practice  in  Venezuela  of  demanding  that 
the  custody  of  ships'  papers  while  in  port  be  confided  to  the  Venezuelan 
officers  is  not  in  consonance  with  the  practice  of  nations  or  with  com- 
mercial interests.  Your  grounds  were  good,  as  far  as  they  went,  but 
the  princii)les  underlying  the  question  are  broader,  and  involve  the  doc- 
trine of  reciprocity  under  treaty  and  international  maritime  laws. 

"  In  the  first  place,  it  is  proper  that  the  President  should  be  disabused 
of  any  impression  he  may  have  formed  that  the  matter  is  brought  up  as 
an  innovation.  It  has  for  more  than  fifty  years  been  the  occasion  of 
discussion  and  remonstrance  with  various  nations  of  Spanish  America; 
and  if  it  be  now  revived  in  connection  with  Venezuela,  it  is  because  it 
seems  necessarj^  to  the  best  interests  of  both  countries  that  an  anom- 
alous practice  should  not  exist  between  them  in  this  respect. 

''  The  discussion  with  Colombia  is  in  i)oint.  In  187G  a  general  move- 
njent  of  the  foreign  representatives  at  Bogota  was  made  to  secure  the 
abrogation  of  a  law  which  required  the  delivery  of  the  papers  of  foreign 
vessels  to  the  local  port  officers.  An  arrangement  then  concluded  dip- 
lomatically set  the  matter  at  rest  by  recognizing  the  right  of  the  consul 
of  the  ship's  nationality  to  have  the  custody  of  the  ships'  papers  of  their 
national  vessels,  and  the  law  has  since  been  repealed. 

"I  transmit,  herewith,  for  your  information,  copies  of  two  dispatches 
from  ;Mr.  Dichman,  then  our  minister  at  Bogota,  in  which  the  merits  of 
the  demand  are  forcibly  presented.  Although  the  circumstances  made 
the  argument  somewhat  special,  as  applying  to  a  specific  law,  and  to 
the  peculiar  siafus  of  Colon  and  Panama  as  free  ports,  you  will  find  in 
these  dispatches  ample  material  for  fortifying  your  representations  to 
the  Venezuelan  Government  in  the  premises.  You  may,  also,  profitably 
consult  the  remaining  corresp  nulence  on  the  subject,  found  in  the  vol- 
umes of  foreign  relations  for  1875,  1879,  and  1880,  which  are,  or  should 
be,  in  the  library  of  your  legation. 

•'It  may  be  convenient  to  note  herein,  briefly,  a  few  points  to  which 
prominence  should  be  given. 
150 


CHAP.  II.J  PORT   EXTORTIONS.  [§  37 

"In  the  first  place,  the  existing  rule  in  Venezuela  is  deemed  to  be  in 
contravention  of  the  spirit  of  perfect  equality  and  reciprocity  of  com- 
merce and  navigation  between  the  two  countries,  as  stipulated  in  the 
abrogated  treaty  of  1830,  and  as  pervading  the  existing  treaty  of  1860. 
The  law  of  the  United  States,  following  the  usage  of  most  civilized 
countries,  provides  that  the  custody  of  the  papers  of  foreign  ships  shall 
rest  with  the  consuls  of  their  nations,  aiid  this  because  such  custody  is 
deemed  essential  to  that  consular  control  over  national  vessels  which 
is  stipulated  in  all  our  treaties.  It  cannot  be  expected  that  the  United 
States  will  unreservedly  yield  to  the  authorities  of  a  foreign  state  a 
measure  of  control  over  our  vessels  in  their  ports  which  is  not  permitted 
by  our  own  law  to  be  exercised  by  our  own  officers  in  our  own  ports,  over 
foreign  vessels,  except  as  a  retaliatory  measure  in  the  absence  of  reci- 
l)rocity.  In  this  connection  it  may  be  weil  for  you  to  examine  as  to 
the  provisions  of  Venezuelan  law  touching  the  custody  of  the  papers  of 
Venezuelan  vessels  in  foreign  ports.  I  make  this  suggestion  because 
in  the  discussion  of  this  question  with  Colombia  it  was  found  that  the 
Colombian  law  was  strangely  inconsistent  in  requiring  Colombian  con. 
suls  abroad  to  take  charge  of  the  papers  of  vessels  of  their  nation,  while 
denying  a  reciprocal  practice  to  foreign  consuls  in  Colombia.  If  a  like 
law  should  be  found  on  the  Venezuelan  statute  books,  no  stronger  argu- 
ment in  our  favor  could  be  devised. 

"You  should  also,  in  this  relation,  call  attention  to  the  twenty-sixth 
article  of  the  treaty  of  1860,  and  ask  how  it  is  expected  that  an  Ameri- 
can consul  can  exhibit  the  register  and  crew-roll  of  an  American  vessel 
in  proceedings  for  the  arrest  of  deserters,  if  at  no  time  he  is  permitted 
to  have  possession  of  those  papers. 

''  In  the  second  place,  apart  from  considerations  of  reciprocity  founded 
on  treaty,  the  sacredness  of  the  principles  of  reciprocity  as  an  enduring 
basis  of  international  intercourse  under  the  law  of  nations  may  be  for, 
cibly  invoked  to  sustain  our  position.  A  vessel,  under  a  civilized  flag- 
on the  high  seas  or  in  a  foreign  ijort,  possesses  a  national  life  of  which 
its  papers  are  the  strongest  evidence.  They  are  to  all  intents  a  part  of 
the  vessel  itself.  To  assume  that  by  the  act  of  entering  a  friendly  port, 
a  vessel  is  to  be  stripi^ed  of  that  which  is  in  a  large  measure  essential  to 
the  proof  of  its  nationality,  and  to  await  the  pleasure  of  a  local  foreign 
officer  before  such  part  of  its  life  can  be  restored  to  it,  is  inconsistent 
with  international  principles  and  usage.  Hence,  we  find  that  the  cus- 
tom of  nations  (with  but  few  exceptions  in  the  Spanish-American  ports 
of  South  America)  recognizes  the  consul  of  the  vessel's  nationality  as 
the  sole  guardian  of  all  national  rights  appertaining  thereto.  The  e.x- 
ceptions  to  which  I  refer  (and  which  are  happily  growing  fewer  as  the 
principles  of  international  intercourse  are  better  understood)  rest  on  no 
broad  principle  of  comity ;  they  violate  comity,  on  the  contrary,  by  assert- 
ing a  painful  spirit  of  distrust.  It  is,  as  Mr.  Dichman  aptly  expresses 
it  in  a  dispatch  of  September  4, 1879  TForeign  Relations,  1880,  page  313), 

151 


^<;  T)?.]  gOVEREiONTY    OVeR    WATER.  [cHAP.  It. 

iiiiicli  as  I  lioiij^li  it  were  regarded  l)y  the  local  autlioi  itie.s  as  a  more  effect- 
ive pledge  to  [prevent  a  ship's  leaving  a  port  to  have  material  posses- 
sion of  her  register  '  than  if  the  rudder  had  been  unshipped.'  Tlie  form 
in  which  this  distrust  is  expressed,  moreover,  seems  to  evidence  a  mis- 
apprehension as  to  the  nature  and  value  of  a  ship's  register.  As  I  have 
said  altove,  the  regi.ster  is  the  evidence  of  the  ship's  nationality^,  and  as 
such,  with  the  shij)  itself,  are  properly  within  the  continuous  jurisdic- 
tion of  the  vessel's  nation,  and,  therefore,  in  a  foreign  port,  within  the 
jurisdiction  of  the  consul  of  that  nation. 

"  In  the  next  place,  a  conclusive  reason  for  the  custody  of  a  ship's 
papers  by  the  consul  of  her  nation  is  found  in  the  necessity  of  prevent- 
ing frauds  against  individuals  in  connection  with  marine  survey,  repairs, 
bottomry  bonds,  the  right  of  absent  owners,  &c.,  and  protection  of  the 
rights  of  seamen.  It  is  for  these  jmrposes  that  the  legislation  of  nations 
provides  that  the  register  of  a  vessel  while  in  port  shall  pass  out  of  the 
(control  of  her  commander  and  into  the  custody  of  the  consul.  It  is  not 
at  all  necessary  that  these  diversified  rights  should  be  subservient  to 
the  local  police  surveillance  while  in  a  foreign  jiort,  and  yet  the  rule 
existing  in  Venezuela  so  subordinates  them.  Moreover,  the  exercise  of 
these  several  rights  over  a  vessel  for  whfch  the  laws  of  her  nation  make 
abundant  ])rovisioii  is  rendered  almost  impossible  by  the  passage  of  the 
]»apers  out  of  the  control  of  the  nation  to  which  the  vessel  belongs. 

"Finally,  in  your  conversation  with  General  Guzman  Blanco,  you 
have  set  forth  the  considerations  of  convenience  which  should  have 
weight  in  determining  the  question.  The  loss  of  important  ship's  papers 
while  in  foreign  custody  has  been  only  too  (iommon  an  occurrence  in 
the  countries  where  this  obnoxious  regulation  obtains.  The  corre- 
spondence with  Colombia  shows  that  this  was  admitted  as  a  powerful 
objection  to  the  i)ractice,  and  you  can  doubtless  adduce  examples 
occurring  in  Venezuela  to  strengthen  your  point.  I  must  compliment 
you,  too,  on  your  aptness  in  meeting  General  Guzman  Blanco's  objec- 
tion that  if  any  feeling  of  distrust  were  shown  in  this  matter,  it  lay  in 
an  endeavor  to  take  from  the  local  oflicers  the  custody  of  a  foreign  ves- 
sel's ])a])ers.  We  do  not  seek  to  take  from  Venezuela  a  recognized 
rigiit  liecause  we  distrust  its  exercise;  we  simply  wish  to  retain  for  our 
own  consuls  a  i  ight  which  we  deem  pertains  to  them  as  the  representa- 
tives of  our  national  sovereignty,  and  one  which  is  claimed  and  recog- 
nized as  just  among  maritime  nations. 

"  I  infer  from  the  request  of  General  Guzman  Blanco  that  he  is  not 
tenacious  of  the  point,  but  rather  asks  for  so  conclusive  a  statement  of 
our  position  as  would  warrant  him  in  bringing  the  matter  to  the  con- 
sideration of  the  Venezuelan  Congress,  with  a  view  to  asking  such  mod- 
ification of  existing  law  as  will  put  Venezuelan  legislation  in  this  re- 
spect in  harmony  with  the  legislation  and  usage  of  maritime  countries 
throughout  the  world.  You  will,  therefore,  in  presenting  to  him  a  suc- 
cinct memorandum  founded  on  this  dispatch,  set  the  question  forth  on 
152 


CHAP.  II.]  Port  fixToRfioN«.  [§  37. 

its  uierits,  a«  uiuiiug'  to  I'ucilitate  a  needed  reloiui  rather  than  as  ag- 
gressively combatting  an  assumed  intent  to  adhere  to  an  obnoxious 
system." 

Mr.  Froliuglauyseu,  Sec.  of  State,  to  Mr. Baker,  Nov.  29, 1882.    MSS.  In8t.,Veuez.; 
For.  Rel.,  1882. 

"  In  continuance  of  correspondence  heretofore  touching  the  export 
tax  of  40  cents  per  capita  levied  by  the  consuls  of  Spain  in  the  United 
States  upon  shipments  of  cattle  for  Cuba  and  Porto  Eico,  I  inclose 
herewith  copy  of  a  letter  from  the  Secretary  of  the  Treasury,  showing 
that  between  December  2,  1881,  and  October  13,  1882,  there  have  been 
collected  by  the  Spanish  vice-consul  at  Key  West  fees  to  the  amount  of 
$9,260  on  23,150  head  of  cattle  exported  to  various  Cuban  ports. 

"  It  is  to  be  noted  that  the  Secretary  of  the  Treasury  describes  this 
tax  as  collected  'for  affixing  the  vice-consul's  signature  to  the  manifests 
of  the  exporting  vessels.' 

"  It  is  possible  that  there  may  be  some  inexactness  in  this  state- 
ment. Article  48  of  the  Spanish  consular  tariff  fixes  this  fee  in  connec- 
tion with  the  fa ctur as  (invoices)  of  the  shippers,  which  are  to  be  pre- 
sented to  the  consul  and  by  him  compared  with  the  manifest  and  with 
copies  of  the  conscirnientos  (bills  of  lading)  given  by  the  master  of  the 
vessel,  to  verify  their  correctness.  Even  in  this  light  the  transaction 
is  open  to  the  gravest  objections  as  a  virtual  export  tax  ;  but  if  the  fee 
is  charged  for  simple  legalization  of  the  manifest,  in  addition  to  the  fee 
separately  prescribed  for  such  legalization,  it  is  not  only  irrational  but 
intolerable. 

"  Tour  late  dispatches  indicate  a  disposition  on  the  i)art  of  his  excel- 
lency the  Marquis  de  la  Vega  de  Armijo  to  examine  the  question  in  the 
light  of  equity  and  international  right  and  comity.  It  is  hoped  that  a 
favorable  decision  in  this  regard  is  not  far  distant ;  for,  in  the  absence 
of  a  recognition  by  Spain  of  the  justice  of  our  contention,  this  Govern- 
ment will  be  reluctantly  forced  to  consider  measures  whereby  a  retalia- 
tory charge  may  be  imposed  on  the  Spanish  shipments  to  the  United 
States." 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.  Reed,  Jau.  12,  1883.    MSS.  Inst.,  Spain  ; 
For.  Rel.,  1882. 

"The  frequent  recurrence  of  these  arbitrary  seizures  of  American 
vessels  by  the  Mexican  customs  officers  in  the  Gulf  and  Pacific  ports 
of  that  Republic  is  becoming  a  matter  of  serious  anxiety  to  this  Gov- 
ernment in  view  of  the  possible  effect  such  proceedings  maj'  ultimately 
have  on  the  commerce  of  both  nations.  The  similarity  of  institutions, 
the  close  neighborhood,  and  the  community  of  interests  of  the  two 
great  North  American  Republics,  no  less  than  the  permanent  and 
abiding  friendship  that  exists  between  both  Governments,  renders  it 
most  desirable  that  every  obstacle  and  impediment  to  the  growth  and 
progress  of  this  commerce,  which  this  Government,  in  common  with  that 

163 


^\  37.T  s()M:TM:Tr!x'rv  over  water.  [chap.  ll. 

of  iMcxic'o,  is  ;i(  tlu'  inoim'nt  so  earnestly  enjfaged  in  fostering,',  should 
b(>  as  far  as  i)racticable  removed.  Jii  most  iustauces  these  arbitrary 
and  irrejjular  proceedings  are  directed  against  small  vessels,  and  often 
in  their  results  involve  losses  far  beyond  the  pecuniary  value  of  the 
vessel.  The  masters  are  driven  to  the  courts  for  redress,  often  by  ap- 
l)eal  to  the  Supreme  Court,  at  great  expense;  and  the  instances  are 
lew,  if,  indeed,  any  can  be  found,  where  the  courts  have  sustained  the 
action  of  the  customs  officers.  In  bringing  the  present  claim  to  the  at- 
tention of  the  minister  for  foreign  affairs,  which  you  will  do  with  as 
little  delay  as  convenient,  you  will  also  submit  to  the  minister,  for  the 
consideration  of  the  Government,  these  general  suggestions  which  I 
have  felt  it  my  duty  to  offer." 

Mr.  Frelinglmysen,  Sec.  of  State,  to  Mr.  Morgan,  Jan.  31,  1883.     MSS.  lust., 
Mexico. 

"Your  dispatch  No.  562,  of  the  6th  instant,  relating  to  the  case 
of  the  Adriana  at  La  Paz,  has  been  received  and  has  had  careful  at- 
tention. 

"As  your  dispatch  shows  you  to  have  been  fully  informed  of  the 
facts  upon  the  date  of  writing,  there  is  no  present  need  of  herein  re- 
citing the  case. 

"  Your  conclusion  accords  with  that  of  this  Department,  that  the 
case,  on  the  admitted  statements,  presents  certain  grave  features. 

"  1.  The  refusal  of  the  Mexican  authorities  to  allow  Captain  Caleb 
to  have  access  to  the  consul  when  arrested,  or  when  called  upon  to 
plead. 

"2.  Their  action  in  requiring  Captain  Caleb  to  sign  certain  declara- 
tions while  incommnnicacio  and  without  knowledge  of  their  purport, 
t'specially  as  it  appears  that  these  so-called  declarations  may  be  relied 
upon  to  establish  the  Mexican  claim  that  (Captain  Caleb  admits  a  viola- 
tion of  the  criminal  law  of  Mexico.  That  Captain  Caleb  signed  the 
papers  in  question  under  bodily  fear  or  constraint  is  not  yet  fully 
established.  If  it  were,  it  would  lend  an  exceptional  gravity  to  the 
case. 

"3.  The  refusal  of  the  collector  to  permit  the  consul  to  visit  the 
vessel. 

"  It  is  of  course  impossible  to  judge  fully  of  the  case  until  the  text 
of  the  so-called  declarations  of  Captain  Caleb  is  known.  It  may  be 
assumed,  however,  from  the  character  of  the  sworn  declarations  made 
by  him  and  his  officers  before  Consul  Viosca  that  it  could  not  have 
l)een  his  intelligent  or  voluntary  intention  to  put  his  name  to  a  con- 
fession that  he  was  willfully  violating  the  laws  of  Mexico  in  regard  to 
smuggling.     •     •     * 

"  If  you  have  not  already  done  so,  you  will  now  address  Senor 
Mariscal,  asking  an  examination,  and  requesting  copies  of  the  declara- 
tions signed  by  Captain  Caleb.  You  will  intimate  to  the  minister  that 
154 


CHAP.  II.'J  ^  PORT    EXTORTTOrS  [§  37. 

the  iiianner  iii  which  Captain  Caleb  alleges  he  \va,s  coiisiiaiiied  to  sign 
papers  of  the  contents  of  which  lie  was  ignorant,  and  while  deprived 
of  the  assistance  of  the  consul  for  his  intelligent  protection  against 
Ruy  misunderstanding  on  his  part,  is  regarded  as  an  irregularity  which, 
in  the  judgment  of  this  Government,  will  deprive  those  declarations 
of  any  moral  weight  if  they  be  trusted  to  sustain  the  charge  of  smug- 
gling brought  against  the  captain.  And  you  will  further  intimate 
that  the  whole  course  of  the  proceedings  appears  to  be  so  inconsistent 
with  the  principles  recognized  in  the  intercourse  of  maritime  states 
that  persistence  in  the  prosecution  of  Cai)tain  Caleb  on  those  i)remises 
could  not  fail  to  call  forth  the  most  earnest  remonstrance  of  this 
Government. 

"It  is  not  the  desire  or  purpose  of  this  Government  to  screen  any  of 
its  citizens  who  may  have  willfully  violated  foreign  law.  But  it  is  its 
plain  duty  to  endeavor  by  every  legitimate  means  to  secure  for  its  cit- 
izens under  accusation  of  wrongdoing  such  justice  and  impartiality 
of  treatment  and  such  safeguards  for  their  defense  as  shall  entitle  the 
judgment  reached  to  the  respect  which  judicial  proceedings  should 
everywhere  command. 

"  If  the  rules  of  international  justice  shall  appear  to  have  been  in 
any  way  infringed,  it  is  the  undeniable  right  and  obligation  of  this 
Government  to  interpose  its  diplomatic  offices  to  insure  a  fair  trial. 

"To  so  practical  a  jurist  as  yourself  these  brief  indications  will  suf- 
fice for  the  present  conduct  of  this  case." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Morgan,  Feb.  20,  1885.     MSS.  Inst., 
Mex. ;  For.  Eel.,  1883. 

"Mr.  Eeed's  No.  221,  of  the  28th  ultimo,  has  been  received,  and  the 
reply  of  the  Spanish  Government  therewith  transmitted,  in  relation  to 
the  Spanish  consular  fee,  has  been  considered. 

"I  must  express  my  disappointment  that  the  matter,  after  so  labori- 
ous a  correspondence,  during  which  the  views  of  this  Government 
have  been  most  clearly  set  forth  and  consideration  thereof  promised  by 
Spain,  should  now  stand  in  the  very  unsatisfactory  condition  to  which 
it  is  brought  by  the  note  of  the  Marquis  de  la  Vega  de  Armijo  of  the 
20th  May. 

"The  files  of  your  legation  contaiiusuch  precise  instructions  on  the 
points  in  dispute  that  I  need  do  no  more  than  refer  you  to  the  records 
for  a  full  view  of  our  position  in  the  controversy.  Briefly,  however, 
we  claimed  that  the  fee  imposed  represented  no  clerical  act  of  the  con- 
sul and  afibrded  no  guarantee  to  the  home  Government  that  the  in- 
voices are  themselves  correct,  or  that  they  correspond  with  the  mani- 
fest, and  therefore  that  the  charge  of  10  cents  per  ton  or  40  cents  per 
head  of  cattle,  when  levied  by  the  consul,  amounted  simply  to  an  ex- 
port tonnage  or  per  capita  tax  levied  by  Spain  within  the  territory  of 
a  friendly  state.     His  excellency  the  Marquis  de  la  Vega  apparently 

155 


^^  r>7.]  sovKRr:TaNTY  over  watkr.  [chap.  ir. 

;i(Ii:iits  ilu'  jiusiicc  ol'  the  second  tjta^e  ol'  tlii«  aij^Liiuent,  lur  be  pro- 
posis  to  j;et  rid  of  the  questiou,  so  far  as  the  ])ractical  levying  of  an 
ex|)ort  tax  in  foreign  eonn'.'ies  is  concerned,  by  making  the  tax  col- 
lectible within  Spanish  jurisdiction. 

"This  i)ropositiou  is  one  which  can  only  be  regarded  with  astonish- 
ment. Either  the  tax  is  a  consular  one,  representing  a  fee  for  a  service 
perloniied  by  a  consular  officer  and  ai)plicable  to  the  maintenance  of 
the  consuhir  system,  or  it  is  nothing  more  than  a  revenue  tax  levied 
on  ex])orts  from  foreign  ])orts  for  the  benefit  of  the  Spanish  treasury. 
We  have  claimed,  with  strong  support  of  argument,  as  we  think,  that 
the  charge  is  not  properly  a  consular  oue,  but  in  its  nature  and  mode 
of  payment,  a  revenue  tax.  The  reply  of  the  Spanish  Government 
makes  the  charge  in  fact  as  well  as  in  principle  the  very  revenue  tax 
we  claimed  it  to  be  and  proposes  to  direct  its  collection  in  Spain.  If 
the  charge  is  in  principle  a  proper  consular  charge,  it  is  a  proper  one 
to  be  collected  by  the  consuls  themselves.  If  not  a  proper  one  to  be 
collected  by  the  (ionsuls  on  their  own  behalf,  propriety  is  not  to  be 
(•oiiiinuni(!ated  to  it  by  trusting  the  goods,  so  to  speak,  for  the  amount 
of  the  tax,  until  they  come  within  Spanish  jurisdiction. 

"My  argument  assumes  that  the  charge,  even  if  to  be  collected  in 
Sjjanish  jurisdiction,  remains,  in  the  judgment  of  the  Spanish  Gov- 
ernment, a  consular  charge,  and  that  the  assumed  right  to  collect  it 
arises  out  of  certain  transactions  to  which  the  exx)orters,  on  the  oue 
hiind,  and  the  Spanish  consul  in  the  United  States  on  the  other,  are 
respectively  parties.  In  such  a  case  this  Government  is  unable  to  see 
that  a  change  in  the  mere  place  of  payment  would  change  the  nature 
of  the  fact  in  which  the  alleged  obligation  to  pay  originates.  The  ob- 
jectionable tax  would  remain  as  before,  in  essence,  an  export  tax  levied 
m  the  United  States,  although  its  material  collection  may  be  performed 
in  a  Spanish  port. 

"There  is  but  one  way  in  which  the  proposal  to  collect  10  cents  per 
ton  of  cargo  from  the  vessels  of  the  United  States  in  Spanish  ports 
could  be  regarded  as  defensible  under  international  law,  and  that  is  by 
abandoning  altogether  the  sophistical  contention  that  it  is  a  consular 
fee,  and  collecting  it  as  a  distinct  im])ort  tax,  levied  in  Spanish  ports, 
in  addition  to  customs  and  other  import  dues  prescribed  by  existing 
law.  If  so  levied  and  collected*  on  all  foreign  cargoes  brought  within 
Spanish  jurisdiction,  without  distinction  of  flag,  this  Government 
could  not  controvert  the  perfect  right  of  Spain  to  adopt  such  a  meas- 
ure: but  it  could  not  look  with  equanimity  on  any  partial  measure, 
the  practical  result  of  which  would  be  the  imposition  of  a  discriminat- 
ing <luty  of  10  cents  per  ton  against  tlie  cargoes  of  vessels  going  from 
the  United  States  to  ports  of  Spain.  Tlie  answer  of  the  Marquis  de  la 
Vega  is  understood  to  profwse  the  eslablishment  of  such  a  de  facto  dis- 
crimination. He  says  that  the  obnoxious  tax,  instead  of  being  col- 
156 


illAP.  11.]  PORT    EXTORTIONS.  [§  37. 

lected  at  the  Spanish  consulates  in  the  United  States,  will  be  exacted 
by  the  collectors  of  customs  at  the  port  of  destination.  It  does  not 
appear  that  the  modified  form  of  collection  is  to  apply  to  importations 
into  Spain  from  n,uy  other  country  than  the  United  States. 

"It  seems  necessary,  even  after  all  that  has  been  heretofore  said,  to 
direct  you  to  make  clear  to  his  excellency  the  Marquis  de  hi  Vega  the 
difl'erence  between  our  consular  fee  for  the  verification  of  an  invoice 
and  the  Spanish  consular  tax  on  the  tonnage  of  the  vessel's  cargo. 

"The  act  of  a  United  States  consul  in  a  foreign  country,  with  re- 
spect to  an  invoice  presented  to  him,  is  a  distinct  and  responsible 
service  destined  to  protect  bona  fide  shippers  and  the  revenue  alike 
from  frauds  by  undervaluation  and  otherwise. 

"The  validity  of  the  transaction  is  scrutinized  at  every  step.  The 
exporter  must  be  known  to  the  consul,  he  must  appear  before  him  and 
;aake  oath  that  the  descriptions  and  valuations  of  the  goods  are  cor- 
rect, and  the  consul  must  examine  the  prices  given,  and  assure  himself 
that  the  goods  are  honestly  valued.  The  consul  must,  in  certain  cases, 
procure  and  forward  to  his  own  Government  samples  of  his  invoiced 
goods.  The  invoice  is  executed  under  oath  in  triplicate,  one  copy  be- 
ing recorded  in  the  consulate,  one  copy  being  forwarded  to  the  collector 
of  customs  at  the  port  of  destination,  and  the  third  being  delivered  to 
the  exporter. 

"  In  the  event  of  there  being  ground  to  expect  fraud  or  undervaluation, 
the  consul  must  collect  evidence  as  to  the  market  value  of  the  goods,  and 
forward  a  report  by  the  same  mail  to  the  collector  at  the  port  of  desti- 
nation. When  the  amount  of  clerical  labor  is  considered,  the  United 
8' tates  charge  of  $2.50  for  the  entire  operation,  irrespective  of  the  amount 
r  r  value  of  the  invoiced  goods,  is  believed  to  be  reasonable  and  just. 
U  certainly  corresponds,  as  a  fee,  to  a  service  performed  by  the  consul. 
■XTie  service  being  uniform,  the  fee  is  so  likewise,  and  is  paid  by  the  per- 
» m  to  whom  the  service  is  rendered. 

"  The  Spanish  tax  is  wholly  difierent.  It  purjiorts  to  be  for  compar- 
ig  the  invoices  and  bills  of  lading  with  the  vessel's  manifest.  It  is  a 
;  istinct  fee  from  that  for  authenticating  the  manifest,  for  which  from 
!'[)to  50  pesetas  ($G  to  $10)  is  demanded.  The  bills  of  lading  are  sub- 
witted  by  the  captain  with  his  manifest,  and  are  simply  compared  by 
ItJie  consul.  I  am  unaware  what  useful  purpose  the  operation  sub- 
Wirves  as  a  guarantee.  If  its  effects  were  to  establish  under  the  consul's 
jertificate  the  fact  of  conformity  between  a  bill  of  lading  and  the  ship's 
iianifest,  and  so  exempt  the  captain  of  the  vessel  from  a  vexatious  fine 
when  the  goods  are  found  to  differ  from  the  manifest  weight  or  descrip- 
tion, an  object  might  be  discerned  worthy  of  consideration.  But  in  any 
■aspect  of  the  case  the  service  performed  by  the  consul  is  practically  in- 
Tariable,  while  the  fee  varies  and  is  computed  on  a  basis  wholly  discon- 
nected from  the  consular  act,  and  bearing  no  conceivable  logical  rela- 
tion thereto.     The  Spanish  consular  fee  is,  in  short,  a  pro  rata  tax  ou 

167 


^^37.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

the  car-io  of  the  vessel,  aud  uot  a  specific  fee  for  a  specific  act  performed 
by  a  Spunisli  oflicer. 

"  Kot  only  is  the  reply  of  the  Marquis  de  la  Vega  unsatisfactory  in  its 
general  aspect,  but  it  is  even  more  so  with  respect  to  the  particular  rec-. 
lainations  made  for  the  return  of  the  excessive  capitation  charged  on 
(iattle  shipped  from  Key  West  by  Mr.  McKay  aud  others.  His  excel- 
lency admits  that  the  tax  was  wrongfully  collected  ;  that  the  circular  of 
the  18th  October,  1876,  sui)pressed  the  charge  of  40  cents  per  capita  and 
substituted  a  tonnage  tax  of  10  cents,  and  that  the  unlawful  collection 
of  the  old  rates,  notwithstanding  their  formal  abrogation,  has  only  re- 
cently been  put  a  stop  to. 

"  It  does  not  appear  to  this  Government  a  sufficient  or  just  reparation 
for  a  wrongful  act  admittedly  perpetrated  by  the  Spanish  officers  of  the 
(.onsulate  at  Key  West  since  1876  to  give  orders  that  hereafter  the 
wrongful  tax  shall  not  be  collected.  The  case  is  conceived  to  be  one 
where  no  less  a  reparation  than  the  return  of  the  illegally  collected  ex- 
cess could  satisfy  either  the  right  pertaining  to  the  United  States  or 
the  high  sense  of  justice  of  Spain.  It  will  doubtless  be  enough  for  you 
to  call  the  attention  of  the  minister  of  state  to  this  point  to  insure  the 
cheerful  correction  of  the  oversight,  and  a  prompt  offer  to  refund  the 
overcharge  in  question." 

Mr.  John  Davis,  Acting  Sec.  of  State,  June  23,  1883,  to  Mr.  Foster.    MSS.  Inst., 
Spain;  For.  Eel.,  1883. 

Fraud,  when  essential  to  sustain  a  custom-house  confiscation,  is  only 
to  be  held  to  exist  when  plainly  to  be  inferred  from  the  facts. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr,  Foster,  Feb.  25, 1884.    MSS.  iDst.,  Spain. 
Mr,  Bayard,  Sec.  of  State,  to  Mr.  Foster,  July  25,  1885.     MSS.  Inst.,  Spain. 

An  American  vessel,  having  been  embargoed  in  a  port  of  Brazil  by 
competent  authority,  was  unlawfully  taken  away  by  her  master,  with- 
out the  payment  of  the  required  charges,  and  brought  to  New  York. 
It  was  advised  that,  as  the  act  of  the  master  did  not  violate  any  statute 
of  the  United  States,  the  request  of  Brazil  that  measures  be  taken 
against  him  by  this  Government  could  not  be  complied  with. 
16  Op.,  282,  Devens,  1879. 

Under  the  Constitution  of  the  United  States  a  statute  of  a  State  en- 
acting that  the  masters  and  wardens  of  a  port  within  it  should  be  en- 
titled to  demand  and  receive,  in  addition  to  other  fees,  the  sum  of  $5, 
wlu'ther  called  on  to  perform  any  service  or  uot,  for  every  vessel  arriv- 
ing in  that  port,  is  a  tonnage  tax,  and  is  unconstitutional  and  void. 
Steamahip  Company  v.  Port  Wardens,  6  Wallace,  31. 

It  has  also  been  held  that  while  taxes  levied  by  a  State  upon  vessels 

<»wnfdb\  its  citizens  as  property,  and  based  on  a  valuation  of  the  same,  are 

not  prohibited  by  the  Federal  Constitution,  yet  taxes  cannot  be  imposed 

on  them  by  the  State  "  at  so  much  per  ton  of  the  registered  tonnage," 

158 


CHAP.  II.]  PORT    LAW  :       NECESSITY.  [§  38. 

Sucli  taxes  are  within  the  prohibition  of  the  Conrititution  that  "no 
State  shall,  without  the  (consent  of  Congress,  lay  any  duty  of  tonnage." 
Nor  is  the  case  varied  by  the  fact  that  the  vessels  were  not  only  owned 
by  citizens  of  the  State,  but  exclusively  engaged  in  trade  between 
places  within  the  State. 

State  tonnage  tax  cases,  12  Wallace,  204. 

Any  duty,  or  tax,  or  burden  imposed  under  the  authority  of  the 
States,  which  is  in  its  essence  a  contribution  claimed  for  the  privilege 
of  arriving  and  departing  from  a  port  of  the  United  States,  and  which 
is  assessed  on  a  vessel  according  to  its  carrying  capacity,  is  a  tonnage 
tax  within  the  meaning  of  the  Federal  Constitution,  and  therefore  void. 

Cannon  v.  New  Orleans,  20  Wallace,  577. 

XV.— EXEMPTION  FROM  STRESS    OF    WEATHER,    VIS  MAJOR,   OB  INAD- 
VERTENCE. 

§   38. 

Where  a  coasting  vessel,  bound  from  one  port  to  another  in  the  United 
States,  is  carried  by  mutineers  into  a  foreign  port,  the  lawful  officers  ot 
such  vessel  are  entitled  to  aid  from  the  local  authorities  of  such  port  in 
recovering  control. 

Mr.  Webster,  Sec.  of  State,  to.Mr.  Everett,  Dec.  28, 1841.     MSS.  Inst.,  Gr.  Brit. 
Same  to  same,  Feb.  12,  1842.     (Creole  case.) 

The  cargo  of  a  ship  driven  by  stress  of  weather,  or  carried  by  mutiny 
into  a  foreign  port,  is  not  subject  to  confiscation  or  disposal  in  such 
port,  because  it  may  consist  of  articles  which  are  there  held  not  to  be 
the  subjects  of  property. 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Everett,  Dec.  28,  1841.     MSS.  Inst.,  Gr.  Brit. 
[In  this  case  the  cargo  consisted  of  slaves,  but  Mr.  Webster,  in  his  argument, 

extended  the  principle  to  goods  which  (e.  g.,  opium)  might  be  held  not  to 

be  the  subject  of  property  in  the  port  of  refuge.] 

"  In  cases  of  vessels  carried  into  British  ports  by  violence  or  stress  of 
weather,  we  insist  that  there  shall  be  no  interference  from  the  land 
with  the  relation  or  personal  condition  of  those  on  board,  according  to 
the  laws  of  their  own  country  ;  that  vessels  under  such  circumstances 
shall  enjoy  the  common  laws  of  hospitality,  subjected  to  no  force,  enti- 
tled to  have  their  immediate  wants  and  necessities  relieved,  and  to  i>ur- 
sue  their  voyage  without  molestation." 

Mr.  Webster  to  Mr.  Everett,  June  28,  1842 ;  2  Curtis's  Life  of  Webster,  106. 

Lord  Aberdeen  took  the  position  with  Mr.  Webster  that  the  parties 
who  had  mutinied  and  carried  oft'  the  Creole  were  "  very  innocent  indi- 
viduals, who  had  chosen  fo  come  to  her  Majesty's  dominions  with  a  shii) 
the  possession  and  control  of  which  they  liad  very  rightfully  obtained," 

159 


§  38.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

»  *  #  a  You  will  have  seen  what  passed  in  the  court  of  Nassau, 
when  the  consul  of  the  United  States  made  an  attempt  to  brinjj-  the 
mutineei's  and  nmnli^ieis  to  trial  as  pirates.  We  have  never  said  nor 
snp|Ktsed  llic.v  could  be  tried  in  the  British  courts  as  pirates  ;  but  tlie 
chiefJusticH'  of  the  Baliama  Islands  completely  justifies  these  persons  for 
all  llieyhave  done,  and  ^oes  out  of  his  way  to  express  doctrines  and 
sentiments  which  appear  to  us  absolutely  ferocious." 

2  Curtis's  Life  of  Webster,  99. 

Mr.  Webster  to  Mr,  Everett,  June  29, 1842. 

See  discussion  in  2  Benton's  Thirty  years  in  U.  S.  Senate. 

"A  vessel  on  the  high  seas,  beyond  the  distance  of  a  marine  league 
from  the  shore,  is  regarded  as  part  of  the  territory  of  the  nation  to 
which  she  belongs,  and  subjected  exclusively  to  the  jurisdiction  of  that 
nation.  If,  against  the  will  of  her  master  or  owner,  she  be  driven  or 
carried  nearer  to  the  land,  or  even  into  port,  those  who  have  or  ought 
to  have  control  over  her  struggling  all  the  while  to  keep  her  upon  the 
high  seas,  and  so  within  the  exclusive  jurisdiction  of  her  own  Govern- 
ment, what  reason  or  justice  is  there  in  creating  a  distinction  between 
her  rights  and  immunities  in  a  position  thus  the  result  of  absolute 
necessity,  and  the  same  rights  and  immunities  before  superior  power 
has  forced  her  out  of  her  voluntary  course? 

"  But,  my  Lord,  the  rule  of  law  and  the  comity  and  practice  of  na- 
tions go  much  further  than  these  cases  of  necessity,  and  allow  even  to 
a  merchant  vessel  coming  into  any  open  port  of  another  country  vol- 
untarily for  the  purposes  of  lawful  trade,  to  bring  with  her  and  keep 
over  her  to  a  very  considerable  extent  the  jurisdiction  and  authority 
of  the  laws  of  her  own  country,  excluding  to  this  extent,  by  conse- 
quence, the  jurisdiction  of  the  local  law.  A  ship,  say  the  publicists, 
though  at  anchor  in  a  foreign  harbor,  preserves  its  jurisdiction  and  its 
law.  It  is  natural  to  consider  the  vessels  of  a  nation  as  parts  of  its 
territory,  though  at  sea,  as  the  state  retains  its  jurisdiction  over  them; 
and,  according  to  the  commonly  received  custom,  this  jurisdiction  is 
preserved  over  the  vessels  even  in  parts  of  the  sea  subject  to  a  foreign 
(h)minion. 

"This  is  the  doctrine  of  the  law  of  nations  clearly  laid  down  by 
writers  of  received  authority,  and  entirely  conformable,  as  it  is  sup- 
posed, Mith  the  practices  of  modern  nations. 

•'  If  a  murder  be  committed  on  board  of  an  American  vessel  by  one 
of  the  crew  upon  another,  or  upon  a  passenger,  or  b^^  a  passenger  on 
one  of  the  crew  or  another  ])assenger,  while  such  vessel  is  lying  in  a 
port  within  the  jurisdiction  of  a  foreign  state  or  sovereignty,  the  offense 
is  cognizable  and  punishable  by  the  proper  court  of  the  United  States 
in  the  same  manner  as  if  such  offense  had  been  committed  on  board  the 
vessel  on  the  high  seas.  The  law  of  England  is  supposed  to  be  the 
same. 

160 


CHAP.  II.]  PORT    LAW  :    NECESSITY.  [§  38. 

"It  is  true  that  the  jurisdiction  of  a  nation  over  a  vessel  belonging 
to  it,  while  lying  in  the  port  of  another,  is  not  necessarily  wholly  ex- 
clusive. We  do  not  so  consider  or  so  assert  it.  For  any  unlawful 
acts  done  by  her  while  thus  lying  in  port,  and  for  all  contracts  entered 
into  while  there  by  her  master  or  owners,  she  and  they  must  doubtless 
be  answerable  to  the  laws  of  the  place.  iSIor,  if  her  master  or  crew, 
while  on  board  in  such  port,  break  the  peace  of  the  community  by 
the  commission  of  crimes,  can  exemption  be  claimed  for  them.  But, 
nevertheless,  the  law  of  nations,  as  I  have  stated  it,  and  the  statutes 
of  Governments  founded  on  that  law,  as  I  have  referred  to  them, 
show  that  enlightened  nations,  in  modern  times,  do  clearly  hold  that 
the  jurisdiction  and  laws  of  a  nation  accompany  her  ships  not  only 
over  the  high  seas,  but  into  ports  and  harbors,  or  wheresoever  else 
they  may  be  water-borne,  for  the  general  purpose  of  governing  the 
rights,  duties,  and  obligations  of  those  on  board  thereof,  and  that 
to  the  extent  of  the  exercise  of  this  jurisdiction  they  are  considered 
as  parts  of  the  territory  of  the  nation  herself. 

"  If  a  vessel  be  driven  by  weather  into  the  ports  of  another  nation,  it 
would  hardly  be  alleged  by  any  one  that,  by  the  mere  force  of  such 
arrival  within  the  waters  of  the  state,  the  law  of  that  state  would  so 
attach  to  the  vessel  as  to  affect  existing  rights  of  property  between 
persons  on  board,  whether  arising  from  contract  or  otherwise.  The 
local  law  would  not  operate  to  make  the  goods  of  one  man  to  become  the 
goods  of  another  man.  '  ISTor  ought  it  to  affect  their  personal  obligations 
or  existing  relations  between  themselves ;  nor  was  it  ever  supposed  to 
have  such  effect  until  the  delicate  and  exciting  question  which  has 
caused  these  interferences  in  the  British  islands  arose.  The  local  law  in 
these  cases  dissolves  no  obligations  or  relations  lawfully  entered  into  or 
lawfully  existing  according  to  the  laws  of  the  ship's  country.  If  it  did, 
intercourse  of  civilized  men  between  nation  and  nation  must  cease. 
Marriages  are  frequently  celebrated  in  one  country  in  a  manner  not 
lawful  or  valid  in  another ;  but  did  anybody  ever  doubt  that  marriages 
are  valid  all  over  the  civilized  world,  if  valid  in  the  country  in  which  they 
took  place?  Did  any  one  ever  imagine  that  local  law  acted  upon  such 
marriages,  to  annihilate  their  obligation,  if  the  parties  should  visit  a 
country  in  which  marriages  must  be  celebrated  in  another  form?  *  * 
"  A  merchant  vessel  enters  the  port  of  a  friendly  state  and  enjoys 
while  there  the  protection  of  her  own  laws,  and  is  under  the  jurisdiction 
of  her  own  Government,  not  in  derogation  of  the  sovereignty  of  tlie 
place,  but  by  the  presumed  allowance  or  permission  of  that  sovereignty. 
This  permission  or  allowance  is  founded  on  the  comity  of  nations,  like 
the  other  cases  which  have  been  mentioned  ;  and  this  comity  is  part, 
and  a  most  important  and  valuable  part,  of  the  law  of  nations,  to  which 
all  Nations  are  presumed  to  assent  until  they  make  their  dissent  known. 
In  the  silence  of  any  positive  rule,  affirming  or  denying  or  restraining 
the  operation  of  foreign  laws,  their  tacit  adoption  is  presumed  to  the 
S.  Mis.  162— VOL,  T- 11  3.61 


.<,  ;n.]  c;ovKllEIGNTY    OVER    WATEf?.  [('ITAt>.  II. 

ICaslcni  ports  l>.v  restrictions  as  to  storage  and  by  onerous  taxation. 
Vov  these  mischiefs  adequate  relief  is  not  always  afforded  by  reci- 
procity treaties  like  that  witb  Hawaii  or  that  lately  negotiated  with 
Mexico  and  now  awaiting  the  action  of  the  Senate.  Is  it  not  advisable 
to  provide  some  measure  of  equitable  retaliation  in  our  relations  witli 
Governments  which  discriminate  against  our  own?  If,  for  example, 
the  Executive  were  empowered  to  apply  to  Spanish  vessels  and  cargoes 
from  Cuba  and  Puerto  Rico  the  same  rules  of  treatment  and  scale  oi' 
l)enalties  for  technical  faults  which  are  applied  to  our  vessels  and  car- 
goes in  the  Antilles,  a  resort  to  that  course  might  not  be  barren  of  good 
results." 

President  Arthur,  third  anunal  message,  1883. 

"You  have  yourself  already  made  known  to  the  President  several  very 
convincing  reasons  why  the  practice  in  Venezuela  of  demanding  that 
the  custody  of  ships'  papers  while  in  port  be  confided  to  the  Venezuelan 
otiicers  is  not  in  consonance  with  the  practice  of  nations  or  with  com- 
mercial interests.  Your  grounds  were  good,  as  far  as  they  went,  but 
the  principles  underlying  the  question  are  broader,  and  involve  the  doc- 
trine of  reciprocity  under  treaty  and  international  maritime  laws. 

"In  the  first  place,  it  is  proper  that  the  President  should  be  disabused 
of  any  impression  he  may  have  formed  that  the  matter  is  brought  up  as 
an  innovation.  It  has  for  more  than  fifty  years  been  the  occasion  of 
(liscussion  and  remonstrance  with  various  nations  of  Spanish  America; 
and  if  it  be  now  revived  in  connection  with  Venezuela,  it  is  because  it 
seems  necessary  to  the  best  interests  of  both  countries  that  an  anom- 
alous practice  should  not  exist  between  them  in  this  respect. 

"The  discussion  with  Colombia  is  in  point.  In  1876  a  general  move- 
ment of  the  foreign  representatives  at  Bogota  was  made  to  secure  the 
abrogation  of  a  law  which  required  the  delivery  of  the  papers  of  foreign 
vessels  to  the  local  port  officers.  An  arrangement  then  concluded  dip- 
lomatically set  the  matter  at  rest  by  recognizing  the  right  of  the  consul 
of  the  ship's  nationality  to  have  the  custody  of  the  ships'  papers  of  their 
national  vessels,  and  the  law  has  since  been  repealed. 

"  I  transmit,  herewith,  for  your  information,  copies  of  two  dispatches 
from  Mr.  Dichman,  then  our  minister  at  Bogota,  in  which  the  merits  of 
the  demand  are  forcibly  juvsented.  Although  the  circumstances  made 
the  argument  somewhat  special,  as  applying  to  a  specific  law,  and  to 
the  peculiar  slatus  of  Colon  and  Panama  as  free  ports,  you  will  find  in 
these  dispatches  ample  material  for  fortifying  your  representations  to 
the  Venezuelan  Government  in  the  premises.  You  may,  also,  profitably 
consult  the  remaining  correspondence  on  the  subject,  found  in  the  vol- 
umes of  foreign  relations  for  1875,  1879,  and  1880,  which  are,  or  should 
be,  in  the  library  of  your  legation. 

"It  may  l)e  convenient  to  note  herein,  briefly,  a  few  points  to  which 
l)rominence  sliould  be  given. 

150 


CHAP.  II.]  PORT   EXTORTIONS.  [§  37 

"In  tlie  first  place,  the  existing-  rule  in  Venezuela  is  (leenied  to  be  iu 
contravention  ol"  the  spirit  of  perfect  equality  and  reciprocity  of  com- 
merce and  navigation  between  the  two  countries,  as  stipulated  in  the 
abrogated  treaty  of  183G,  and  as  pervading  the  existing  treaty  of  1800. 
The  law  of  the  United  States,  following  the  usage  of  most  civilized 
countries,  provides  that  the  custody  of  the  papers  of  foreign  ships  shall 
rest  with  the  consuls  of  their  nations,  and  this  because  such  custody  is 
deemed  essential  to  that  consular  control  over  national  vessels  which 
is  stipulated  in  all  our  treaties.  It  cannot  be  expected  that  the  United 
States  will  unreservedly  yield  to  the  authorities  of  a  foreign  state  a 
measure  of  control  over  our  vessels  in  their  ports  which  is  not  permitted 
by  our  own  law  to  be  exercised  by  our  own  oflQcers  in  our  own  ports,  over 
foreign  vessels,  except  as  a  retaliatory  measure  in  the  absence  of  reci- 
]>rocity.  In  this  connection  it  may  be  well  for  you  to  examine  as  to 
the  provisions  of  Venezuelan  law  touching  the  custody  of  the  papers  of 
Venezuelan  vessels  in  foreign  ports.  I  make  this  suggestion  because 
in  the  discussion  of  this  question  with  Colombia  it  was  found  that  the 
(Colombian  law  was  strangely  inconsistent  in  requiring  Colombian  con. 
suls  abroad  to  take  charge  of  the  papers  of  vessels  of  their  nation,  while 
denying  a  reciprocal  practice  to  foreign  consuls  in  Colombia.  If  a  like 
l;iw  should  be  found  on  the  Venezuelan  statute  books,  no  stronger  argu- 
ment in  our  favor  could  be  devised. 

"You  should  also,  in  this  relation,  call  attention  to  the  twenty-sixth 
article  of  the  treaty  of  1860,  and  ask  how  it  is  expected  that  an  Ameri- 
can consul  can  exhibit  the  register  and  crew-roll  of  an  Ameiican  vessel 
in  proceedings  for  the  arrest  of  deserters,  if  at  no  time  he  is  permitted 
to  have  possession  of  those  papers. 

"In  the  second  place,  apart  from  considerations  of  reciprocity  founded 
on  treaty,  the  sacredness  of  the  principles  of  reciprocity  as  an  enduring 
basis  of  international  intercourse  under  the  law  of  nations  may  be  for, 
cibly  invoked  to  sustain  our  position.  A  vessel,  under  a  civilized  flag- 
on the  high  seas  or  in  a  foreign  port,  possesses  a  national  life  of  which 
its  papers  are  the  strongest  evidence.  They  are  to  all  intents  a  part  of 
the  vessel  itself.  To  assume  that  by  the  act  of  entering  a  friendly  port, 
a  vessel  is  to  be  stripped  of  that  which  is  in  a  large  measure  essential  to 
the  proof  of  its  nationality,  and  to  await  the  pleasure  of  a  local  foreign 
officer  before  such  i)art  of  its  life  can  be  restored  to  it,  is  inconsistent 
with  international  principles  and  usage.  Hence,  we  find  that  the  cus- 
tom of  nations  (with  but  few  exceptions  iu  the  Spanish- American  ports 
of  South  America)  recognizes  the  consul  of  the  vessel's  nationality  as 
the  sole  guardian  of  all  national  rights  appertaining  thereto.  The  ex- 
ceptions to  which  I  refer  (and  which  are  happily  growing  fewer  as  the 
principles  of  international  intercourse  are  better  understood)  rest  on  no 
broad  principle  of  comity ;  they  violate  comity,  on  the  contrary,  by  assert- 
ing a  painful  spirit  of  distrust.  It  is,  as  Mr.  Dichmau  aptly  expresses 
it  in  a  dispatch  of  Seiitember  4, 1879  (Foreign  Eelations,  1880,  page  313), 

151 


^^  38.]  SOVEREIGNTY    OVER    WATER.  [CHAP.    II. 

"A  coiivcMitioii  was  coucluded  at  Madrid  ou  the  5tli  of  March,  1860, 
cstalili.sliin.u  a  Joint  commission  for  the  liiial  adjudication  and  payment 
of  all  Hie  chiinis  of  the  respective  parties.  Bj^  this  the  validity  and 
amount  of  the  Cuban  claims  were  expressly  admitted,  and  their  speedy 
])ayment  was  placed  beyond  question.  The  convention  was  transmitted 
to  the  Senate  for  their  constitutional  action  on  the  3d  of  May,  1860,  but 
on  the  21th  of  June  they  determined,  greatly  to  the  suprise  of  the 
President  and  the  disappointment  of  the  claimants,  that  they  would 
'not  advise  and  consent'  to  its  ratification. 

"The  reason  for  this  decision,  because  made  in  executive  session,  can- 
not be  positively  known.  This,  as  stated  and  believed  at  the  time,  was 
because  the  convention  had  authorized  the  Spanish  Government  to  pre- 
sent its  Amistad  claim,  like  any  other  claim,  before  the  board  of  com. 
missioners  for  decision.  This  claim,  it  will  be  recollected,  was  for  the 
payment  to  the  Spanish  owners  of  the  value  of  certain  slaves,  for  which 
the  Spanish  Government  held  the  United  States  to  be  responsible  under 
the  treaty  with  Spain  of  the  27th  October,  1795.  Such  was  the  evidence 
in  its  favor  that  three  Presidents  of  the  United  States  had  recommended 
to  Congress  to  make  an  appropriation  for  its  payment,  and  a  bill  for 
this  purpose  had  passed  the  Senate.  The  validity  of  the  claim,  it  is 
proper  to  observe,  was  not  recognized  by  the  convention.  In  this  re- 
spect it  was  placed  on  the  same  footing  with  all  the  other  claims  of  the 
])arties,  with  the  exception  of  the  Cuban  claims.  All  the  Spanish  Gov- 
ernment obtained  for  it  was  simply  a  hearing  before  the  board,  and  this 
could  not  be  denied  with  any  show  of  impartiality.  Besides,  it  is  quite 
certain  that  no  convention  could  have  been  concluded  without  such  a 
l)rovision. 

"  It  was  most  probably  the  extreme  views  of  the  Senate  at  the  time 
against  slavery,  and  their  reluctance  to  recogoize  it  even  so  far  as  to 
l)ermic  a  foreign  claimant,  although  under  the  sanction  of  a  treaty,  to 
raise  a  question  before  the  board  which  might  involve  its  existence, 
that  caused  the  rejection  of  the  convention.  Under  the  impulse  of  such 
sentiments,  the  claims  of  our  fellow-citizens  have  been  postponed  if  not 
finally  defeated.  Indeed,  the  Cuban  claimants,  learning  that  the  objec- 
tions in  the  Senate  arose  from  the  Amistad  claim,  made  a  formal  offer 
to  remove  the  difliculty  by  deducting  its  amount  from  the  sum  due  to 
them,  but  this,  of  course,  could  not  be  accepted." 

!Mr.  Buchanan's  defense  quoted  2  Curtis's  Buch.,  223. 
As  to  Amistad  case,  see,  fully,  ivfra  $  161. 

"The  case  of  the  Rebecca  is  one  of  a  number  which  have  lately 
hai)pened  in  various  parts  of  the  world  under  the  Spanish  or  Spanish- 
American  law.  From  Manila,  from  Spain,  from  Cuba,  from  Venezuela, 
from  Mexico,  the  same  story  comes  of  vessels  driven  by  stress  of 
weather  to  deviate  in  some  measure  from  the  plan  of  their  voyage,  and 
punished  by  heavy  fines,  or  even  confiscation,  because  the  document^ 
16i 


CHAP.  II.]  rOKT  LAW :    NECESSITY.  [§  38. 

or  cargo  do  not  conform  to  the  rules  laid  down  for  regular  dire.ct  im- 
portations. The  frequency  with  which  cases  of  inhospitable  treatment 
like  this  are  brought  to  the  notice  of  this  Government  is  a  cause  of 
apprehension.  Some  of  the  instances  which  have  come  under  our 
observation  show  subjection  to  treatment  not  far  removed  from  the 
ancient  rule  by  which  a  vessel  out  of  her  course  or  stranded  on  strange 
coasts  became  lawful  plunder.  The  course  of  modern  civilization  has 
exempted  shipwrecked  vessels  and  crews  from  inhospitable  treatment, 
and  it  may  not  be  chimerical  to  hope  for  a  better  international  under- 
standing which  may  leniently  free  a  vessel  in  distress  from  the  perils 
of  a  rigid  interpretation  of  the  letter  of  a  law  applicable  only  to  regular 
and  undistressed  arrivals." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr,  Morgan,  Apr.  7, 1884.     MSS.  Inst., 
Mexico. 

A  vessel  "  anchored  outside  of  the  bar,  near  the  harbor  of  Tampico, 
in  an  exceptionally  rough  sea,  at  the  close  of  a  severe  storm,  which 
rendered  it  unsafe  for  her  to  attempt  to  cross  the  bar  or  enter  the  har- 
bor," "  could  scarcely  be  said,  with  strict  propriety,  to  have  been  in 
Mexican  waters." 

Mr.  Frelingbuysen,  Sec.  of  State,  to  Mr.  Morgan,  May  17,  1884.     MSS.  Inst., 
Mex. ;  For.  Eel.,  1884. 

A  United  States  merchant  vessel,  driven  into  a  Mexican  port  against 
the  will  of  her  officers,  and  by  storms  which  they  could  not  prudently 
escape,  is  entitled  to  redress  from  Mexico,  through  the  agency  of  this 
Dei3artment,  for  injury  sustained  by  her  from  being  run  into  negligently 
by  a  Mexican  cruiser. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  July  2,  1885.     MSS.  Inst.,  Mex. 

Casus,  in  such  cases,  is  a  defence  to  a  charge  of  invasion  of  port  laws. 

Same  to  same,  Sept.  14,  1885,  id. 

As  to  Venezuelan  penalties  on  vessel  seeking  port  in  distress  sea  Mr.  Freling- 

liuysen.  Sec.  of  State,  to  Mr.  Baker,  Feb.  18,  1884 ;  April  1,  1884.     MSS. 

Inst.,  Venez. 

The  Rebecca  was  a  United  States  merchant  vessel  engaged  in  the 
coastwise  trade.  She  was  bound  for  Tampico,  Mexico,  but  had  on 
board  some  packages  for  Brazos,  Texas.  When  she  arrived  off  Brazos, 
she  was  met  by  a  violent  storm  which  drove  her  south,  and  after  it 
abated  she  made  for  Tampico.  There  she  was  seized,  and  because  the 
packages  intended  for  Brazos  were  not  on  her  Mexican  manifest  she 
and  her  cargo  were  confiscated.  The  question  of  law  in  the  case  is 
.  whether,  the  packages  intended  for  Brazos  having  been  brought  into 
Tampico  through  stress  of  weather,  the  vessel  was  "  liable  to  penal 
process  m  such  port  either  for  '  smuggling'  or  for  *  bringing  goods  into 
the  port  without  proj)er  papers.' 

165 


§  37.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

side  of  the  island  of  Cuba.  Under  circumstances  of  great  apparent 
li.inlsliip,  a  line  of  $1,900  was  imposed  on  the  vessel,  and  the  master, 
Captain  PhilliiKs,  was  obliged  to  execute  a  bond,  with  sureties  for  the 
amount,  in  order  to  secure  a  clearance  for  his  vessel. 

"  In  each  of  these  cases  instructions  have  been  forwarded  to  you,  and 
they  are  adverted  to  here  only  as  being  pertinent  to  the  general  sub- 
ject of  this  instruction. 

"  They  are  exami)les  of  many  similar  occurrences  to  American  vessels 
in  the  colonial  i)orts  of  Spain.  Hitherto  the  consul-general  of  the 
United  States  at  Havana  has  been  able  to  secure  an  adjustment  of  such 
cases  by  prosecuting  the  complaints  to  the  superior  authorities  at  that 
port,  and  efiforts  looking  towards  the  same  end  were  made  by  that  officer 
in  each  of  the  cases  referred  to.  He  was  met,  however,  with  the  an- 
nouncement that  under  an  existing  ordinance,  the  strict  observance  ot 
which  has  been  re  enjoined  by  a  rojal  order  recently  promulgated  in 
(Jul)a,  tlie  local  authorities  can  no  longer  deal  with  such  questions,  but 
that  they  must  be  remitted  for  settlement  to  the  Government  at  Madrid. 
The  adoption  of  this  course  of  procedure  by  Spain  has  very  much  ag- 
gravated this  general  grievance  to  American  commerce.  Complaints 
of  such  instances  liave  of  late  become  so  frequent  from  owners  and 
masters  of  American  vessels  that  the  question  demands  the  most  serious 
attention  of  this  Government.  The  President  therefore  directs  me  to 
instruct  you  to  bring  the  question  to  the  attention  of  His  Catholic 
INIajesty's  Government,  and  in  doing  so  you  will  request  that  authority 
shall  be  given,  either  to  the  captain-general  in  Cuba  or  to  His  Majesty's 
minister  at  this  capital,  to  consider  such  cases  and  grant  redress  when 
necessary.  The  arbitrary  conduct  of  subordinate  officials  in  Cuba  can- 
not be  submitted  to  without  retaliation  on  Spanish  vessels  and  com- 
merce, unless  there  is  secured  a  more  speedy  remedy  than  is  afforded  by 
resort  to  Madrid." 

Mr.  Frclingbnysen,  Soc.  of  State,  to  Mr.  Hamliu,  Feb.  1.5,  1862.     MSS.  Inst., 
Spain;  For.  Rel.,  1882. 

"  Mr.  James  McKay,  a  citizen  of  the  United  States  resident  in  Monroe 
County,  Florida,  and  who  is  extensively  engaged  in  feeding  and  ship 
ping  cattle  to  Cuban  markets,  has  recently  brought  to  the  attention  of 
tlie  l)ei):irtment  a  practice  pursued  by  the  Spanish  consul  at  Key  West, 
ill  regard  to  shipments  from  that  port  to  Havana  and  other  Cuban 
ports,  which  results  in  annoyance,  inconvenience,  and  serious  losses  to 
liin)self  and  other  American  citizens  engaged  in  similar  business. 

"  It  appears  from  Mr.  McKay's  letter  of  the  22d  of  June  last  to  the 
J)epartment,  that  the  Spanish  consul  at  Key  West,  in  pursuance,  as 
tliat  officer  alleges,  of  instructions  from  his  Government,  exacts  and 
collects  from  Mr.  McKay  and  other  American  cattle  shippers  40  cents 
a  head  on  all  cattle  shipped  by  them  from  the  State  of  Florida  to  Cuba. 
This  is  in  addition  to  the  ordinary  and  usual  consular  fees  charged  and 


CHAP.  II.]  PORT    EX.TORTIONS.  [§  37. 

collected  for  clearing  the  vessel,  certifying  papers,  and  such  other 
charges  as  may  properly  be  made  by  the  consul  in  connectiouvwith  such 
shipments.  On  these  same  cattle,  when  landed  on  the  island  of  Cuba, 
Mr.  McKay  and  the  other  shippers  situated  like  him  have  to  pay  an 
import  duty  of  $6  per  head.  Of  this  import  duty  paid  in  Cuba,  how- 
ever onerous  it  may  be,  they  make  no  complaint,  recognizing  the  right 
of  the  Spanish  Government  to  impose  and  collect  within  its  own  terri- 
torial jurisdiction  such  duties  as  it  may  deem  proper  under  its  own  mu- 
nicipal laws,  provided  it  does  not  transcend  the  limits  of  treaty  stipu- 
lations. 

"In  the  letter  referred  to,  Mr.  McKay  transmits  thirteen  protests 
made  by  him,  before  a  notary  public,  in  relation  to  as  many  shipments, 
giving  in  each  case  the  name  of  the  vessel,  the  number  of  cattle  in  the 
cargo,  the  date  of  shipment,  and  the  gross  amount  of  head-tax  charged 
on  each  shipment.  Thus,  on  the  22d  of  April,  1882,  on  the  steamship 
Alabama,  from  Key  West  to  Havana,  451  head  of  cattle,  upon  which  he 
paid  to  the  consul  in  question  $180.40,  and  so  on  through  all  the  others,' 
varying  only  in  the  number  of  cattle  in  each  cargo  and  the  gross  amount 
of  tax  paid.  A  subsequent  letter  from  McKay  on  the  19th  ultimo  in- 
closes ten  similar  documents.  These  twenty-three  protests  represent 
as  many  shipments  made  by  him  from  Key  West  to  Havana  between 
the  22d  of  April  and  the  7th  of  Au^'ust  of  the  present  year,  and  em- 
bracing 10,967  head  of  cattle,  upon  which  Mr.  McKay  has  paid  to  the 
Spanish  consul  at  Ke;5i  West,  at  40  cents  a  head,  $4,386.80,  and  when 
the  $6  a  head  paid  upon  their  being  landed  at  Havana  ($65,802)  is 
added,  it  is  seen  that  this  one  American  shipper  has  been  obliged  to 
pay  to  the  Spanish  Government  the  sum  of  $70,188.80  before  he  gets  his 
cattle  into  the  Cuban  market. 

"  It  is  not  conceivable  that  the  Government  of  Spain,  a  country  whose 
history  and  traditions  are  so  intimately  and  so  justly  identified  with  the 
growth  and  progress  of  the  world's  commerce,  could  intend  this  charge 
of  40  cents  a  head  as  a  restriction  on  the  commerce  of  the  United  States. 
The  long  and  unbroken  friendship  existing  between  the  two  countries 
forbid  such  an  interpretation  of  the  policy  of  His  Catholic  Majesty's 
Government. 

"  The  charge,  nevertheless,  under  whatever  supposed  right  or  neces- 
sity on  the  part  of  Spain  it  may  be  imposed,  is  in  effect  such  a  restric- 
tion, and  is  a  burden  so  onerous  on  American  citizens  engaged  in  that 
rapidly  increasing  branch  of  American  commerce  as  must  in  time  haves 
the  effect  of  excluding  them  from  the  Spanish  colonial  markets  of  Cuba. 
It  is  a  charge,  moreover,  upon  whatever  ground  it  may  be  placed,  that 
is  in  itself  anomalous.  ISTo  other  Government  with  which  the  United 
States  hold  commercial  relations  attempts  to  make  or  enforce  any 
similar  tax  or  charge  in  the  ports  of  the  United  States,  and  it  is  almost 
superfluous  to  state  that  the  consular  officers  of  the  United  States  are 
not  authorized  to  njake  any  similar  charges  in  the  ports  of  Spain  or  her 

147 


^<;  40.]  SOVEREIGNTY    OVER    WATER.  [CHAP.  II. 

Tlic  liiw  (Iocs  not  ])roliibit  armed  vessels  belonging  to  citizens  of  the 
rniU'd  States  Iroui  sailing  out  of  our  i)orts ;  it  only  requires  the  owners 
to  give  security  that  such  vessels  shall  not  be  employed  by  them  to 
••oMiniit  hostilities  against  foreign  po\yers  at  peace  with  the  United 
States. 

U.  S.  V.  Quincy,  6  Pet.,  445. 

XVII.  NEUTRALIZED  WATERS. 
§  40. 

The  treaty  of  Washington,  of  April  19, 1850  (Clayton-Bulwer),  recites 
at  the  outset  the  desire  of  the  parties  to  set  forth  by  ''  a  convention 
their  views  and  intentions  with  reference  to  any  means  of  communica- 
tion by  ship-canal,  which  may  be  constructed  between  the  Atlantic  and 
Pacific  Oceans,  by  the  way  of  the  river  St.  Juan  de  Nicaragua  and 
either  or  both  of  the  lakes  of  Nicaragua  or  Managua,  to  any  port  or 
place  on  the  Pacific  Ocean."  In  Article  V  it  is  engaged  "  that  when  the 
said  canal  shall  have  been  completed  they  will  protect  it  from  interrup- 
tion, seizure,  or  unjust  confiscation,  and  that  they  will  guarantee  the 
neutrality  thereof,  so  that  the  said  canal  may  forever  be  open  and  free, 
and  the  capital  invested  therein  secure."  But  this  neutrality  and  guar- 
antee was  conditioned  on  the  managers  making  regulations  "  not  con- 
trary to  the  spirit  and  intention  of  the  convention,"  and  to  the  with- 
drawal six  months'  notice  is  requisite.  It  is  further  provided  (Article 
VIII)  that  the  contracting  parties  "  having  not  oi4y  desired,  in  entering 
into  this  convention,  to  accomplish  a  particular  object,  but  also  to  estab- 
lish a  general  principle,"  agree  to  "  extend  their  protection,  by  treaty 
stipulations,  to  any  other  practicable  communications,  whether  by  canal 
or  railway,  across  the  isthmus  which  connects  North  and  South  Amer- 
ica, and  especially  to  the  interoceanic  communications,  should  the  same 
prove  to  be  practicable,  whether  by  canal  or  railway,  which  are  now 
proposed  to  be  established  by  way  of  Tehuantepec  or  Panama."  The 
free  use  of  such  transit  is  to  be  open  to  all  states  joining  in  the  guar- 
antee. 

This  treaty  is  the  only  instance  in  which  the  United  States  has  con- 
sented to  join  with  any  European  power  in  the  management  of  political 
interests  in  the  western  hemispliere;  and  the  treaty  is  remarkable,  not 
merely  because  it  is  a  dei)arture  from  the  settled  policy  of  the  United 
States  not  to  sanction  any  European  interference  in  the  affairs  of 
Aineriea,  but  because,  deviating  in  this  way  from  our  settled  system,  it 
undertakes,  in  concert  with  a  foreign  power,  to  determine  a  question 
the  most  important  to  the  United  States  that  can  arise  outside  of  our 
own  territory.  Ilerealter,  in  §§  57,  72,  will  be  considered  the  general 
jmliey  of  the  United  States  to  which  this  is  an  exception,  and  in  §§  287, 
jf,  the  questions  of  international  law  imniediatelv  arising  from  our 
relations  to  the  isthmus.  It  will  also  be  hereafter  shown  that  so  far  as 
tlie  Clayton-Btilwer  treaty  (of  1850)  relates  to  the  then  recent  projected 
Nicaraguan  canal,  it  is  now  obsolete,  that  canal  having  been  aban- 
doned, and  the  concession  to  it  recalled  by  Nicaragua;  and  that  the 
eighth  article  of  the  treaty,  as  given  above,  cannot  any  longer,  from 
change  of  circumstances,  and  other  causes,  be  enforced.     Infra,  §  150/". 

168 


CHAP.  II.]  KEUTRALIZED    WATERS.  [§  40. 

Eivers  which  pass  through  several  states  are,  as  we  have  seen,  ueu- 
fralized,  so  far  as  concerns  the  several  riparian  sovereigns,  sometimes 
hy  a  tacit  understanding  of  the  law  of  nations  to  this  effect,  sometimes 
by  treaty. 

Supra,  §  30. 

The  neutralization  of  the  Rhine  is  thus  limited  by  the  twenty-sixth 
article  of  the  treaty  of  Vienna  of  1815. 

"  If  it  should  happen  that  war  should  break  out  among  the  states  of 
the  Rhine,  the  collection  of  the  customs  shall  continue  uninterrupted 
without  any  obstacle  being  thrown  in  the  way  of  either  party.  The 
vessels  and  persons  employed  by  the  custom-houses  shall  enjoy  all  the 
rights  of  neutrality." 

On  July  13,  1840,  a  convention  was  entered  into  at  London  between 
Great  Britain,  Austria,  Prussia,  Russia,  and  the  Ottoman  Porte  "for 
the  purpose  of  maintaining  the  principle  that  the  passage  of  the  Straits 
of  Dardanelles  and  of  the  Bosphorus  shall  remain  always  closed  against 
foreign  ships-of-war  while  the  Porte  is  at  peace."  France  was  not  con- 
sulted as  to  this  treaty,  which  was  precipitated  by  the  revolt  of  Meheniet 
Ali,  whose  relations  with  France  were  intimate,  against  the  Porte.  This 
exclusion  was  much  resented  by  France,  and  for  a  time  it  seemed  as  if 
the  "  neutralization"  in  this  case  would  be  broken  up  by  an  immediate 
hostile  attack.  (See  Guizot's  Embassy  to  the  Court  of  St.  James, 
chapts.  6,  7.)  Kor  was  the  United  States  consulted,  or  in  any  way  a 
party  to  the  procedure,  and  is  not,  therefore,  bound  by  the  neutraliza- 
tion. 

The  treaty  of  Paris  of  1856,  to  which  most  of  the  great  European 
powers  assented,  but  to  which  the  United  States  was  not  a  party,  ex- 
tended still  further  this  neutralization.  By  its  ninth  article  it  provides 
that  "the  Black  Sea  is  neutralized;  its  waters  and  its  ports,  thrown 
open  to  the  mercantile  marine  of  every  nation,  are  formally  and  in  per- 
petuity interdicted  to  the  flag  of  war,  either  of  the  powers  possessing 
its  coasts  or  of  any  other  power,  with  the  exceptions  mentioned  in  Ar- 
ticles XIV  and  XIX  of  the  present  treaty."  By  the  tenth  article  of  a 
supplementary  treaty  of  the  same  date  the  "  Sultan  declared  he  was 
firmly  resolved  to  maintain  for  the  future  the  principle  invariably  es- 
tablished as  the  ancient  rule  of  his  Empire,  and  by  virtue  of  which  it 
has  at  all  times  been  prohibited  for  the  ships-of-war  of  foreign  powers 
to  enter  the  Straits  of  the  Dardanelles  and  of  the  Bosphorus,  and  that, 
so  long  as  the  Porte  is  at  peace,  His  Majesty  will  admit  no  foreign  ships- 
of-war  into  the  said  straits."  The  six  other  signatories  "  engaged  to  re- 
spect this  determination  of  the  Sultan,  and  to  conform  themselves  to 
the  principle  above  declared."  The  clause  as  to  the  neutralization  of 
the  Black  Sea  was  abrogated  by  the  first  article  of  the  treaty  of  Lon- 
don, of  March  13,  1857,  but  there  was  a  renewal  of  the  rule  closing  the 
Dardanelles  and  the  Bosphorus  to  ships-of  war;  the  right  being  re- 
served, however,  to  the  Sultan,  of  "oi)eiiing  them  in  time  of  peace  to 
the  vessels  of-war  of  friendly  and  allied  powers,  in  case  the  Sublime 
Porte  should  judge  it  necessary,  in  order  to  secure  the  execution  of  the 
stipulations  of  the  treaty  of  Paris  of  3()th  March,  1856." 

Great  Britain,  on  August  27, 1856,  solemnized  with  Honduras  a  treaty 
which  may  be  regarded  as  an  appeudage  to  the  clauses  in  the  Clayton- 
Bulwer  treaty  above  given.  An  "additional  article,"  as  it  is  called,  to 
the  British-Honduras  treaty  provides  that  "in  consideration  of  the 
concessions  previously  named,  and  in  order  to  i  ecure  the  construction 

169 


^S  -a.]  SOVEREIGNITY    OVER    WATER.  [CHAP.  II. 

(he  riir-o  of  the  vessel,  uiid  uot  a  specific  fee  for  5i  specific  act  performed 
by  a  Spanish  oificor. 

''  >:()t  oi)ly  is  tlie  reply  of  the  Marquis  do  la  Vega  unsatisfactory  in  its 
general  aspect,  but  it  is  even  more  so  with  respect  to  the  particular  rec- 
lamations made  for  the  return  of  the  excessive  capitation  charged  on 
cattle  shipped  from  Key  West  by  Mr.  McKay  and  others.  His  excel- 
lency admits  that  the  tax  was  wrongfully  collected  ;  that  the  circular  of 
the  ISth  October,  187G,  suppressed  the  charge  of  40  cents  per  capita  and 
substituted  a  tonnage  tax  of  10  cents,  and  that  the  unlawful  collection 
of  the  old  rates,  notwithstanding  their  formal  abrogation,  has  only  re- 
cently been  i)Ut  a  stop  to. 

"  It  does  not  appear  to  this  Government  a  sufficient  or  just  reparation 
for  a  wrongful  act  admittedly  perpetrated  by  the  Spanish  officers  of  the 
tonsulate  at  Key  West  since  1876  to  give  orders  that  hereafter  the 
wrongful  tax  shall  not  be  collected.  The  case  is  conceived  to  be  one 
where  no  less  a  reparation  than  the  return  of  the  illegally  collected  ex- 
cess could  satisfy  either  the  right  pertaining  to  the  United  States  or 
the  high  sense  of  justice  of  Spain.  It  will  doubtless  be  enough  for  you 
to  call  the  attention  of  the  minister  of  state  to  this  point  to  insure  the 
cheerful  correction  of  the  oversight,  and  a  prompt  offer  to  refund  the 
overcharge  in  question." 

Mr.  John  Davis,  Acting  Sec.  of  State,  June  23,  1883,  to  Mr.  Foster.    MSS.  Inst., 
Spain;  For.  Rel.,  1883. 

Fraud,  when  essential  to  sustain  a  custom-house  confiscation,  is  only 
to  be  held  to  exist  when  plainly  to  be  inferred  from  the  facts. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Foster,  Feb.  25, 1884.   MSS.  Inst.,  Spain. 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  Foster,  July  25,  1885.     MSS.  Inst.,  Spain. 

An  American  vessel,  having  been  embargoed  in  a  port  of  Brazil  by 
<rorr)pet«'nt  authority,  was  unlawfully  taken  away  by  her  master,  with- 
out the  payment  of  the  required  charges,  and  brought  to  New  York. 
It  was  advised  that,  as  the  act  of  the  master  did  not  violate  any  statute 
of  the  United  States,  the  request  of  Brazil  that  measures  be  taken 
against  him  by  this  Government  could  not  be  complied  with. 
10  Op.,  '282,  Devens,  1879. 

Under  the  Constitution  of  the  United  States  a  statute  of  a  State  en- 
acting tliat  the  masters  and  wardens  of  a  port  within  it  should  be  en- 
titled to  demand  and  receive,  in  addition  to  other  fees,  the  sum  of  $5, 
wliether  called  on  to  i)erform  any  service  or  not,  for  every  vessel  arriv- 
ing in  t!iat  port,  is  a  tonnage  tax,  and  is  unconstitutional  and  void. 

steamship  Comp.iiiy  r.  Port  Wardens,  6  Wallace,  31. 

rt  has  also  been  held  that  while  taxes  levied  by  a  State  upon  vessels 

()  w  tied  by  i  ts  citizens  as  property,  and  based  on  a  valuation  of  the  same,  are 

not  prohibited  by  the  Federal  Constitution,  yet  taxes  cannot  be  imposed 

on  them  by  the  State  ^'at  so  much  per  ton  ofthe  registered  tonnage," 

158 


CHAP.  II.]  PORT    LAW  :       NECESSITY.  [§  38. 

Such  taxes  are  within  the  prohibition  of  the  ContStitntion  that  "no 
State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  tonnage." 
Nor  is  the  case  varied  by  the  fact  that  the  vessels  were  not  only  owned 
by  citizens  of  the  State,  but  exclusively  engaged  in  trade  between 
I)laces  within  the  State. 

State  tonnage  tax  cases,  12  Wallace,  204. 

Any  duty,  or  tax,  or  burden  imposed  under  the  authority  of  the 
States,  which  is  in  its  essence  a  contribution  claihied  for  the  privilege 
of  arriving  and  departing  from  a  port  of  the  United  States,  and  which 
is  assessed  on  a  vessel  according  to  its  carrying  capacity,  is  a  tonnage 
tax  within  the  meaning  of  the  Federal  Constitution,  and  therefore  void. 

Cannon  v.  New  Orleans,  20  Wallace,  577. 

TY.—EXEMP'IION  FROM  STRESS    OF    WEATHER,    VIS  MAJOR,   OR  INAD- 
VERTENCE. 

§   38. 

Where  a  coasting  vessel,  bound  from  one  port  to  another  in  the  United 
States,  is  carried  by  mutineers  into  a  foreign  port,  the  lawful  officers  ot 
such  vessel  are  entitled  to  aid  from  the  local  authorities  of  such  port  in 
recovering  control. 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Everett,  Dec.  28, 1841.     MSS.  Inst.,  Gr.  Brit. 
Same  to  same,  Feb.  12,  1842.     (Creole  case.) 

The  cargo  of  a  ship  driven  by  stress  of  weather,  or  carried  by  mutiny 
into  a  foreign  port,  is  not  subject  to  confiscation  or  disposal  in  such 
port,  because  it  may  consist  of  articles  which  are  there  held  not  to  be 
the  subjects  of  property. 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Everett,  Dec.  28,  1841.     MSS.  Inst.,  Gr.  Brit. 
[In  tbis  case  tbe  cargo  consisted  of  slaves,  but  Mr.  Webster,  in  bis  argument, 

extended  tbe  principle  to  goods  wbicb  (e.  g.,  opium)  migbt  be  beld  not  to 

be  the  subject  of  property  in  tbe  port  of  refuge.] 

"  In  cases  of  vessels  carried  into  British  ports  by  violence  or  stress  of 
weather,  we  insist  that  there  shall  be  no  interference  from  the  land 
with  the  relation  or  personal  condition  of  those  on  board,  according  to 
the  laws  of  their  own  country  ;  that  vessels  under  such  circumstances 
shall  enjoy  the  common  laws  of  hospitality,  subjected  to  no  force,  enti- 
tled to  have  their  immediate  wants  and  necessities  relieved,  and  to  [)ur- 
sue  their  voyage  without  molestation." 

Mr.  Webster  to  Mr.  Everett,  June  28,  1842 ;  2  Curtiss  Life  of  Webster,  100. 

Lord  Aberdeen  took  the  position  with  Mr.  Webster  that  the  i)arties 
who  had  .mutinied  and  carried  oti"  the  Creole  were  "  very  innocent  indi- 
viduals, who  had  chosen  to  come  to  her  Majesty's  dominions  with  a  .shij) 
the  possession  and  control  of  which  they  had  very  rightfully  obtained." 

159 


^^  45.]  INTERVENTION.  [CHAP.  III. 

I.  GENERAL  RULE  IS  NON-INTERVENTION. 

§  45. 

"  Europe  has  a  set  of  primary  interests  which  to  us  have  none  or  a 
vt'ry  remote  rehitioii.  lleuce,  she  must  be  engaged  in  frequent  contro- 
versies, the  causes  of  which  are  essentially  foreign  to  our  concerns. 
1  Iciice,  tlierefore,  it  must  be  uuwise  in  us  to  implicate  ourselves  by  arti- 
liciiil  ties  in  the  ordinary  vicissitudes  of  her  politics,  or  the  ordinary 
combinations  and  collisions  of  her  friendships  or  enmities.  Our  de- 
taclied  and  distant  situation  invites  and  enables  us  to  pursue  a  different 
course." 

President  Washington's  Farewell  Address,  1797. 

"  '  You  are  afraid,'  says  Mr.  Oswald  to-day,  •  of  being  made  the  tool 
of  the  jmwers  of  Europe.'  'Indeed,  I  am,'  said  I.  'What  powers?' 
said  lie.  'All  of  them,'  said  I.  '  It  is  obvious  that  all  the  powers  of 
ICurope  will  be  continually  manoeuvering  with  us  to  work  us  into  their 
real  or  imaginary  balances  of  power.  They  will  all  wish  to  make  of  us 
a  make-weight  candle,  when  they  are  weighing  out  their  pounds.  In- 
ihM'd,  it  is  not  surprising,  for  we  shall  very  often,  if  not  always,  be  able 
to  turn  the  scale.  But  I  think  it  ought  to  be  our  rule  not  to  meddle; 
and  that  of  all  the  powers  of  Europe,  not  to  desire  us,  or,  perhaps,  even 
to  jtermit  us,  to  interfere,  if  they  can  help  it.' " 

Mr.  John  Adams's  Diary,  Nov    18.  1782  ;  3  John  Adams's  Works,  316. 

"  Peace  is  made  between  Eussia  and  the  Porte,  and  the  definitive 
treaty  between  England  and  Holland  is  expected  to  be  soon  signed. 
May  the  world  continue  at  i)eace!  But  if  it  should  not,  I  hope  we  shall 
have  wisdom  enough  to  keep  ourselves  out  of  any  broil.  As  1  am  quite 
in  sentiment  with  the  Baron  de  Nolken,  the  Swedish  ambassador  at  St. 
.laines'.s,  who  did  me  the  honor  to  visit  me,  although  I  had  not  visited 
liim.  'Sir,'  said  he,  'I  take  it  for  granted  that  you  will  have  sense 
•Miou^ih  to  see  us  in  Europe  cut  each  other's  throats  with  a  philosophical 
tranquillity.'  " 

Mr.  .1.  .\(laniH  to  the  President  of  Congress,  February  10,  1784;   8  John  Adams's 
NVuiks.  17S. 

'•  I  am  .sensible  that  your  situation  must  have  been  difficult  during 
Wm'  transition  from  the  late  form  of  government  to  the  re-establishment 
of  S..I1H.  <.ther  legitimate  authority,  and  that  you  may  have  been  at  a 
loss  to  <h'termine  with  whom  business  might  be  done;  nevertheless 
wImmi  prim-iplos  are  well  understood,  their  application  is  less  embar- 
rassing. W.'  surely  cannot  deny  to  any  nation  that  right  whereon  our 
own  (Government  is  founded,  that  every  one  may  govern  itself  according 
to  whatever  form  it  ideases,  and  change  these  forms  at  its  own  will; 
and  that  it  may  tran.sact  its  business  with  foreign  nations  through 
172 


CHAP.  III.]  GENERAL    liULES.  [§  45. 

whatever  organ  it  thinks  proper,  whether  king,  convention,  assembly, 
committee,  i)re8i(lent,  or  anything  else  it  may  choose.  The  will  of  the 
nation  is  the  only  thing  essential  to  be  regarded.  On  the  dissolution 
of  the  late  constitution  in  France,  by  removing  so  integral  a  part  of  it 
as  the  King,  the  national  assembly,  to  whom  a  part  onl3^  of  the  ])ublic 
authority  had  been  delegated,  apjiear  to  have  considered  themselves  as 
incompetent  to  transact  the  affairs  of  the  nation  legitimately;  they  in- 
vited  their  fellow-citizens,  therefore,  to  appoint  a  national  convention." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Morris,  March  12, 179:3.    MSS.  lust.,  Ministers. 
(See3  Jeff.  Works,  521.) 

"We  love  and  value  peace;  we  know  its  blessings  from  experience. 
We  abhor  the  follies  of  war,  and  are  not  untried  in  its  distresses  and 
calamities.  Unmeddling  with  the  affairs  of  other  nations,  we  had  hoped 
that  our  distance  would  have  left  us  free,  in  the  example  and  indul- 
gence of  peace  with  the  world." 

Mr.  Jefferson,  Sec.  of  State,  to  Messrs.  Carmichael  and  Short,  June  30,  1793. 
MSS.  Inst.,  Ministers;  4  Jeff.  Works,  9. 

"The  principle  of  foreign  affairs,  which  I  then  advocated,  has  been  the 
invariable  guide  of  my  conduct  in  all  situations,  as  ambassador  in 
France,  Holland,  and  England,  and  as  Vice-President  and  President  of 
the  United  States,  from  that  hour  to  this.  *  *  *  This  principle  was 
that  we  should  make  no  treaties  of  alliance  with  any  European  power; 
that  we  should  consent  to  none  but  treaties  of  commerce;  that  we  should 
separate  ourselves  as  far  as  possible,  and  as  long  as  possible,  from  all 
European  politics  and  wars.  In  discussing  the  variety  of  motions  which 
were  made  as  substitutes  for  Mr.  Chase's,  I  was  remarkably  cool,  and, 
for  me,  unusually  eloquent.  On  no  occasion,  before  or  after,  did  I  ever 
make  a  greater  impression  on  Congress." 

Mr.  J.  Adams  to  Dr.  Eush,  Sept.  30,  1805 ;  1  John  Adams's  Works,  200. 

"If  I  could  lay  an  embargo,  or  pass  a  new  importation  law  against 
corruption  and  foreign  influence,  I  would  not  make  it  a  temporary  but 
a  perpetual  law,  and  I  would  not  repeal  it,  though  it  should  raise  a 
clamor  as  loud  as  my  gag-law  or  your  grog-law,  or  Mr.  Jefferson's  em- 
bargo." 

Mr.  J.  Adams  to  Mr.  Rush,  Sept.  27,  180S;  9  John  Adams's  Works,  604. 

"Our  form  of  government,  inestimable  as  it  is,  exposes  us  more  than 
any  other,  to  the  insidious  intrigues  and  pestilent  influence  of  foreign 
nations.  Nothing  but  our  inflexible  neutrality  can  preserve  us.  The 
public  negotiations  and  secret  intrigues  of  the  English  and  the  French 
have  been  employed  for  centuries  in  every  court  and  country  of  Europe. 
Look  back  to  the  history  of  Spain,  Holland,  Germany,  Russia,  Sweden, 
Denmark,  Prussia,  Italy,  and  Turkey,  for  the  last  hundred  years.  How 
many  revolutions  have  been  caused!     How  many  emperors  and  kings 

i73 


^5;  ;>,7.1  sn\  KKKTCXTV    OVER    WATER.  [CUAP.  IT. 

of  Mcxitu,  is  :it  tlic  iiioiiiciit.  so  eanicRlly  cn^iaji^iMl  in  Costoriiit;',  shoiild 
he  as  lar  as  jiracticablc  reuioved.  Jn  most  iu-stauces  tliese  arbitrary 
and  irrcjiular  proceedings  are  directed  against  small  vessels,  and  often 
in  tlicir  rcsnlts  involve  losses  far  beyond  the  pecuniary  value  of  the 
\essel.  The  masters  are  driven  to  the  courts  for  redress,  often  by  ap- 
peal to  the  Supreme  Court,  at  great  expense;  and  the  instances  are 
lew,  if,  indeed,  any  can  be  found,  where  the  (;ourts  have  sustained  the 
action  of  the  customs  oflicers.  Jn  bringing  the  present  claim  to  the  at- 
tention of  the  minister  for  foreign  affairs,  which  you  will  do  with  as 
littU'  delay  as  convenient,  you  will  also  submit  to  the  n)inister,  for  the 
consideration  of  the  Government,  these  general  suggestions  which  I 
have  felt  it  my  duty  to  offer." 

Mr.   iMcliiigliiiyseii,  Soc.  of  State,  to  Mr.  Morgan,  Jan.  'M,  1883.     MSS.  Inst., 
Mexico. 

"  Your  dispatch  No.  5G2,  of  the  Gth  instant,  relating  to  the  case 
of  the  Adriana  at  La  Paz,  has  been  received  and  has  had  careful  at- 
tention. 

"As  your  dispatch  shows  you  to  have  been  fully  informed  of  the 
facts  upon  the  date  of  writing,  there  is  no  present  need  of  herein  re- 
"iting  the  case. 

"  Your  conclusion  accords  with  that  of  this  Department,  that  the 
^.irse,  on  the  admitted  statements,  presents  certain  grave  features. 

"1.  The  refusal  of  the  Mexican  authorities  to  allow  Captain  Caleb 
to*  have  access  to  the  consul  when  arrested,  or  when  called  upon  to 
plea<l. 

"  2.  Their  action  in  requiring  Captain  Caleb  to  sign  certain  declara- 
tions while  mconwinnicnclo  and  without  knowledge  of  their  jiurport, 
esi)ecially  as  it  appears  that  these  so-called  declarations  may  be  relied 
upon  to  establish  the  Mexican  claim  that  Captain  Caleb  admits  a  viola- 
tion of  the  criminal  law  of  Mexico.  That  Captain  Caleb  signed  the 
[)a])ers  in  question  under  bodily  fear  or  constraint  is  not  yet  fully 
established.  If  it  were,  it  would  lend  an  exceptional  gravity  to  the 
vase. 

".'}.  Tile  refusal  of  the  collector  to  permit  the  consul  to  visit  the 
vessel. 

"  It  is  of  course  impossible  to  judge  fully  of  the  case  until  the  text 
of  the  so-called  declarations  of  Captain  Caleb  is  known.  It  may  be 
a.ssumed,  however,  from  the  character  of  the  sworn  declarations  made 
by  him  and  his  oflScers  before  Consul  Viosca  that  it  could  not  have 
been  his  intelligent  or  voluntary  intention  to  put  his  name  to  a  con- 
fession that  he  was  willfully  violating  the  laws  of  Mexico  in  regard  to 
smuggling.     •     •     • 

"  If  you  have  not  already  done  so,  you  will  now  address  Senor 
Mariscal.  asking  an  examination,  and  requesting  copies  of  the  declara- 
tiom  signed  by  Captain  Caleb.  You  will  intimate  to  the  minister  that 
154 


CHAP.  II.]  POl^T   EXTORTtorS.  [§  .87. 

the  intinner  iu  wliicli  Cai)taiii  Caleb  alleg<\s  lie  uii.s  coiisii'aiiJiMl  lo  s'\gu 
papers  of  tlie  coiiteuts  of  whicb  he  was  ignorant,  and  while  deprived 
of  the  assistance  of  the  consul  for  his  intelligent  i)rotection  against 
auy  misunderstanding  on  his  part,  is  regarded  as  an  irregularity  which, 
in  the  judgment  of  this  Government,  will  deprive  those  declaratious 
of  any  moral  weight  if  they  be  trusted  to  sustain  the  charge  of  smug 
gling  brought  against  the  captain.  And  you  will  further  intimate 
that  the  whole  course  of  the  proceedings  appears  to  be  so  inconsistent 
witli  the  principles  recognized  in  the  intercourse  of  maritime  states 
that  persistence  in  the  prosecution  of  Captain  Caleb  on  those  i>remises 
could  not  fail  to  call  forth  the  most  earnest  remonstrance  of  this- 
Government. 

"It  is  not  the  desire  or  purpose  of  this  Government  to  screen  auj  of 
its  citizens  who  may  have  willfully  violated  foreign  law.  But  it  is  its 
plain  duty  to  endeavor  by  every  legitimate  means  to  secure  for  its  cit- 
izens under  accusation  of  wrongdoing  such  justice  and  impartiality 
of  treatment  and  such  safeguards  for  their  defense  as  shall  entitle  the 
judgment  reached  to  the  respect  which  judicial  proceedings  should 
everywhere  command. 

"If  the  rules  of  international  justice  shall  appear  to  have  been  in 
any  way  infringed,  it  is  the  undeniable  right  and  obligation  of  this 
Government  to  interj^ose  its  diplomatic  offices  to  insure  a  fair  trial. 

"To  so  practical  a  jurist  as  yourself  these  brief  indications  will  suf- 
fice for  the  present  conduct  of  this  case." 

Mr.  Frelinghuyeen,  Sec.  of  State,  to  Mr.  Morgan,  Feb.  20,  ISSfi.     MSS.  Inst., 
Mex. ;  For.  Eel.,  1883. 

"Mr.  Reed's  No.  221,  of  the  28th  ultimo,  has  been  received,  and  the 
reply  of  the  Spanish  Government  therewith  transmitted,  in  relation  to 
the  Spanish  consular  fee,  has  been  considered. 

"I  must  express  my  disappointment  that  the  matter,  after  so  labori- 
ous a  correspondence,  during  which  the  views  of  this  Government 
have  been  most  clearly  set  forth  and  consideration  thereof  promised  by 
Spain,  should  now  stand  in  the  very  unsatisfactory  condition  to  which 
it  is  brought  by  the  note  of  the  Marquis  de  la  Vega  de  Armijo  of  the 
20th  May. 

"The  files  of  your  legation  contain  such  i^recise  instructions  on  the 
points  in  dispute  that  I  need  do  no  more  than  refer  you  to  the  records 
for  a  full  view  of  our  position  in  the  controversy.  Briefly,  however, 
we  claimed  that  the  fee  imi)osed  represented  no  clerical  act  of  the  con- 
sul and  afibrded  no  guarantee  to  the  home  Government  that  the  in- 
voices are  themselves  correct,  or  that  they  oorresj)ond  with  the  mani- 
fest, and  therefore  that  the  charge  of  10  cents  i)er  ton  or  40  cents  per 
head  of  cattle,  when  levied  by  the  consul,  amounted  simply  to  an  ex- 
port tonnage  or  per  capita  tax  levied  by  Spain  within  the  territory  of 
a  friendly  state.     His  excellency  the  Marquis  de  la  Vega  apparently 

155 


§  45.]  INTERVENTION.  [CHAP.  III. 

jrree  of  nnoiciice  and  submission  but  little,  if  anything,  short  of  that 
which  is  entertained  for  the  Constitution  itself.  To  enable  it  to  pre- 
serve the  one,  we  have  penal  laws  which  subject  to  the  severest  punish, 
inent  all  attempts,  within  the  scope  of  their  authority,  to  aid  or  abet 
either  i)arty  in  a  war  prosecuted  between  foreign  nations  with  which 
the  United  States  are  at  peace;  and  it  is  made  a  standing  instruction 
to  our  ministers  abroad  to  observe  the  other  with  scrupulous  fidelity." 
Mr.  Van  Buren,  See.  of  State,  to  Mr.  Butler,  Oct.  16,  1829;  MSS.  Inst.,  Am. 
States. 

"  One  of  the  settled  principles  of  this  Government  is  that  of  non-in- 
terference in  the  domestic  concerns  of  nations ;  and  as  it  would  not 
tolerate  it  in  others,  so  must  every  act  of  its  own  functionaries,  which 
might  be  construed  into  a  departure  from  this  principle,  incur  the 
decided  disapi)robation  of  the  President." 

Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Hamm,  Oct.  15,  1830;  MSS.  Inst.,  Am. 
States. 

"By  no  country  or  persons  have  these  invaluable  x)rinciple8  of  inter- 
national law — principles,  the  strict  observance  of  which  is  so  indis 
pensable  to  the  preservation  of  social  order  in  the  world — been  more 
earnestly  cherished  or  sacredly  respected  than  by  those  great  and  good 
men,  who  first  declared,  and  finally  established,  the  independence  of 
our  own  country.  They  promulgated  and  maintained  them  at  an  early 
and  critical  period  in  our  history  ;  they  were  subsequently  embodied  in 
legislative  enactments  of  highly  [)enal  character,  the  faithful  enforce- 
ment of  which  has  hitherto  been,  and  will,  I  trust,  always  continue  to 
be,  regarded  as  a  duty  inseparably  associated  with  the  maintenance  of 
our  national  honor.  That  the  people  of  the  United  States  should  feel 
an  interest  in  the  spread  of  political  institutions  as  free  as  they  regard 
their  own  to  be,  is  natural ;  nor  can  a  sincere  solicitude  for  the  success 
of  all  those  who  are,  at  any  time,  in  good  faith  struggling  for  their  ac- 
tpiisition,  be  imputed  to  our  citizens  as  a  crime.  With  the  entire 
freedom  of  ()[)inion,  and  an  undisguised  expression  thereof,  on  their 
part,  the  Government  has  neither  the  right,  nor,  1  trust,  the  disposition, 
to  interfere.  But  whether  the  interest  or  the  honor  of  the  United  States 
nM|nir(>s  that  tliey  should  be  made  a  party  to  any  such  struggle,  and,  by 
inevitable  consequence,  to  the  war  which  is  waged  in  its  support,  is  a 
question  which,  by  our  Constitution,  is  wisely  left  to  Congress  alone  to 
d«-(;i(h-.  It  is,  by  the  laws,  already  made  criminal  in  our  citizens  to  em- 
barrass or  anticipate  that  decision  by  unauthorized  military  operations 
on  their  part." 

President  Van  Buren's  Second  Annual  Message,  1838.     (See  discussion  in  2  Ben. 
ton's  Thirty  Years  in  the  Senate.  276.) 

In  .the  adoption  (in  18;M-'.35)  by  the  new  South  American  States  of 
their  commercial  policy,"  the   United  States,  consistent  throughout 
X76 


CHAP.  III.]  GENERAL    RULES.  [§  45. 

in  the  disiuteresteduess  of  their  conduct  towards  them  (the  South 
American  States)  desire  no  preference.  But  they  know  too  well  what 
is  due  to  themselves  to  be  satisfied  if  a  preference  be  granted  to  others." 

Mr.  Forsyth,  Sec.  of  State,  to  Mv.  Butler,  Nov.  11,  1834;  MSS.  Inst.,  Mex. 

"The  great  communities  of  the  world  are  regarded  as  wholly  inde- 
pendent, each  entitled  to  maintain  its  own  system  of  law  and  govern- 
ment, while  all  in  their  mutual  intercourse  are  understood  to  submit  to 
the  established  rules  and  principles  governing  such  intercourse.  And 
the  perfecting  of  this  system  of  communication  among  nations,  requires 
the  strictest  application  to  the  doctrine  of  non-intervention  of  any  with 
the  domestic  coucerjis  of  others." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Everett,  Jan.  29,  1842;  MSS.  Inst.,  Great 
Britain. 

For  message  of  President  Tyler  of  Jan.  9,  1843,  in  reference  to  Quintuple  Alli- 
ance for  the  suppression  of  the  Slave  Trade,  see  MSS.  Rep.  Book,  Dep.  of 
State,  vol.  6. 

"In  proclaiming  and  adhering  to  the  doctrine  of  neutrality  and  non- 
intervention, the  United  States  have  not  followed  the  lead  of  other 
civilized  nations  j  they  have  taken  the  lead  themselves,  and  have  been 
followed  by  others. 

"Friendly  relations  with  all,  but  entangling  alliances  with  none,  has 
long  been  a  maxim  with  us.  Our  true  mission  is  not  to  propagate  our 
opinions  or  impose  upon  other  countries  our  form  of  government  by 
artifice  or  force,  but  to  teach  by  example  and  show  by  our  success, 
moderation  and  justice,  the  blessings  of  self-government  and  the  ad- 
vantages of  free  institutions.  Let  every  people  choose  for  itself,  and 
make  and  alter  its  i)olitical  institutions  to  suit  its  own  condition  and 
convenience.  But  while  we  avow  and  maintain  this  neutral  policj^  our- 
selves, we  are  anxious  to  see  the  same  forbearance  on  the  part  of  other 
nations,  whose  forms  of  government  are  difiereut  from  our  own.  The 
deep  interest  which  we  feel  in  the  spread  of  liberal  principles  and  the 
establishment  of  free  governments,  and  the  sympathy  with  which  we 
witness  every  struggle  against  oppression,  forbid  that  we  should  be 
indifferent  to  those  in  which  the  strong  arm  of  a  foreign  power  is  in- 
voked to  stifle  public  sentiment  and  repress  the  spirit  of  freedom  in 
any  country." 

President  Fillmore's  Second  Anuual  Message,  1851  (Mr.  Webster,  Sec.  of  State). 
For  Mr.  Webster's  Hlilsemaun  Letter,  Dec.  21,  1850,  in  which  intervention  is 

generally  discussed,  see  infra,  '^  47. 
For  Mr.  Everett's  discussion  of  the  question  in  his  note  to  Mr.  Crampton,  of  Dec. 

1,  1852,  see  infra,  §  72. 

"Before  this  reaches  you,  the  election  in  France  will  be  over;  and  if, 
as  is  probable,  a  decided  majority  of  the  people  should  be  found  to  sup- 
port the  President,  the  course  of  duty  for  you  will  become  plain.    From 
S.  Mis.  1G2— YOL.  I 1!*  177 


yS  45.]  INTERVENTION.  [CiiAP.  III. 

Prosideut  Washington's  time,  down  to  the  j)iesent  day,  it  has  been  a 
principle  always  acknowledged  by  the  United  States  that  every  nation 
l)ossesses  a  right  to  govern  itself  according  to  its  own  will,  to  change 
its  institutions  at  discretion,  and  to  transact  its  business  through  what- 
ever agents  it  may  think  proper  to  employ.  This  cardinal  point  in  our 
l)oliey  has  been  strongly  illustrated  by  recognizing  the  manj^  forms  of 
political  power  which  have  been  successively  adopted  in  France  in  the 
series  of  revolutions  with  which  that  country  has  been  visited.  Through- 
out all  these  changes  the  Government  of  the  United  States  has  con- 
ducted itself  in  strict  conformity  to  the  original  principles  adopted  by 
Washington,  and  made  known  to  our  di])lomatic  agents  abroad,  and  to 
the  nations  of  the  world,  by  Mr.  Jefferson's  letter  to  Gouverneur  Morris, 
of  the  12th  of  March,  1793;  and  if  the  French  i)eople  have  now,  sub- 
stantially, made  another  change,  we  have  no  choice  but  to  acknowledge 
that  also;  and  as  the  diplomatic  representative  of  your  country  in 
France,  you  will  act  as  your  predecessors  have  acted  and  conform  to 
what  ai)pears  to  be  settled  national  authority.  And,  while  we  deeply 
regret  the  overthrow  of  popular  institutions,  yet  our  ancient  ally  has 
still  our  good  wishes  for  her  prosperity  and  happiness,  and  we  are 
bound  to  leave  to  her  the  choice  of  means  for  the  promotion  of  those 
ends." 

Mr.   Webster,  Sec.   of  State,  to  Mr.   Kives,  Jan.   12,  1852;  MSS.  Inst.,  France. 
As  to  recognition  of  changes  in  foreign  governments,  see  infra,  §^  69,  70. 

"Among  the  oldest  traditions  of  the  Federal  Government  is  an  aver- 
sion to  political  alliances  with  European  powers.  In  his  memorable 
farewell  address,  President  Washington  says:  'The  great  rule  of  con- 
duct for  us,  in  regard  to  foreign  relations,  is,  in  extending  our  commer- 
cial relations,  to  have  with  them  as  little  political  connection  as  possi- 
ble. So  far  as  we  have  already  formed  engagements,  let  them  be  fulfilled 
with  perfect  good  faith.  Here  let  us  stop.'  President  Jefferson,  in  his 
inaugural  address,  in  1801,  warned  the  country  against  'entangling  al- 
liances.' This  expression,  now  become  proverbial,  was  unquestionably 
used  by  Mr.  Jefferson,  in  reference  to  the  alliance  with  France  in  1778, 
an  alliance  at  that  time  of  incalculable  benefit  to  the  United  States, 
but  which  in  less  than  twenty  years  came  near  involving  us  in  the  wars 
of  the  French  lievolution,  and  laid  the  foundation  of  heavy  claims  upon 
Congress,  not  extinguished  to  the  present  day.  It  is  a  significant  co- 
incidence that  the  particular  i)rovision  of  the  alliance  which  occasioned 
these  evils  was  that  under  which  France  called  upon  us  to  aid  her  in 
flefending  her  West  Indian  possessions  against  England.  Nothing  less 
than  the  unbounded  influence  of  Washington  rescued  the  Union  from 
the  perils  of  that  crisis  and  preserved  our  neutrality." 

Mr.  Everott,  Sec.  of  State,  to  Mr.  Sartiges.  Dec.  1,  1852;  MSS.  Notes  France; 
quoted  in  full,  infra  $  72. 

178 


CHAP.  III.]  GENERAL    RULES.  [§  45. 

"Your  dispatch  No.  174  of  the  25th  of  Noveiuber  was  received  yes- 
terdiiy.  It  announces  the  result  of  the  appeal  to  the  people  of  France, 
on  the  subject  of  the  restoration  of  the  Empire,  as  far  as  the  returns 
of  the  votes  had  come  in.  That  event  has  already  no  doubt  been  con- 
summated and  the  Empire  formally  proclaimed.  This  change  will  of 
course  in  no  degree  affect  the  friendly  relations  between  the  United 
States  and  France.  A  deep  interest  was  felt  by  the  Government  and 
people  of  this  country  in  those  events  of  February,  1848,  which  for  a 
while  promised  to  assimilate  the  institutions  of  France  with  our  own. 
But  it  is  the  fundamental  law  of  the  American  Eepublic,  that  the  will 
of  the  people  constitutionally  expressed  is  the  ultimate  principle  of  gov- 
ernment, and  it  seems  quite  evident  that  the  people  of  France  have 
with  a  near  approach  to  unanimity  desired  the  restoration  of  the  Empire." 
Mr.  Everett,  Sec.  of  State,  to  Mr.  Rives,  Dec.  17,  I8b2]  MSS.  Inst.,  France. 

"  The  first  duty  of  a  foreign  minister  is  to  maintain  and  practice  in 
behalf  of  his  Government  good  faith  and  friendship  towards  the  Gov- 
ernment to  which  he  is  accredited.  It  is  not  easy  to  conceive  any  case 
in  which  a  minister  could  rightfully  intervene  and  give  aid  or  counte- 
nance to  an  insurrectionary  movement  in  derogation  of  the  sovereign 
to  which  he  is  accredited.  Doubtlessly  there  are  revolutions  which  de- 
serve the  sympathies  and  favor  of  all  civilized  states,  but  even  in  such 
cases  the  representatives  of  foreign  Governments  should  act  by  their 
direction  and  make  their  protests  direct  and  explicit,  taking  the  respon- 
sibilities of  the  termination  of  diplomatic  intercourse.  No  such  cir- 
(lumstances  are  known  to  us  as  existing  in  regard  to  the  revolution  in 
New  Granada." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Burton,  July  18, 1861 ;  MSS.  Inst.,  Colombia. 

A  guarantee  of  sovereignty  to  South  American  States  is  inconsistent 
with  the  policy  of  the  United  States. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Riotte,  July  7, 1862;  MSS.  Inst.,  Am.  St. 

"  This  Government  has  not  now,  it  seldom  has  had,  any  special  trans- 
action, either  commercial  or  political,  to  engage  the  attention  of  a  min- 
ister at  Rome.  Indeed,  until  a  very  late  period  the  United  States  were 
without  any  representation  at  that  ancient  and  interesting  capital.  The 
first  colonists  in  this  country  were  chiefly  Protestants,  who  not  merely 
recognized  no  ecclesiastical  authority  of  the  Pope,  but  were  very  jealous 
lest  he  might  exert  some  ecclesiastical  influence  here  which  would  be 
followed  by  an  assumption  of  political  power  unfavorable  to  freedom 
and  self-government  on  this  continent.  It  was  not  seen  that  the  politi- 
cal power  of  the  Catholic  Church  was  a  purely  foreign  atfair,  constituting 
an  important  part  of  the  political  system  of  the  European  continent. 
The  opening  of  our  country  as  an  asylum  to  men  of  all  religions,  as  weU 
as  of  all  races,  and  an  extension  of  the  trade  of  the  Union,  in  a  short 

179 


J  45.]  INTERVENTION.  [CHAP.  III. 

time  brought  with  tliem  large  masses  of  the  faithful  members  of  that 
church  of  various  birth  aud  derivation,  and  these  masses  are  continu- 
ally augmenting.  Our  country  has  not  been  slow  to  learn  that  wiiile 
religion  is  with  these  masses,  as  it  is  with  others,  a  matter  of  conscience, 
an«l  while  the  spiritual  authority  of  the  head  of  their  church  is  a  cardi- 
nal article  of  their  faith,  which  must  be  tolerated  on  the  soundest  prin- 
cii)les  of  civil  liberty,  yet  that  this  faith  in  no  degree  necessarily  inter- 
feres with  the  equal  rights  of  the  citizen,  or  affects  unfavorably  his 
loyalty  to  the  Republic.  It  is  believed  that  ever  since  the  tide  of  emi- 
gration set  in  upon  this  continent  the  head  of  the  Roman  church  and 
states  has  freely  recognized  and  favored  the  development  of  this  prin- 
ciple of  political  freedom  on  the  part  of  the  Catholics  in  this  country, 
while  he  has  never  lost  an  opportunity  to  express  his  satisfaction  with 
the  growth,  prosperity,  and  progress  of  the  American  peoi>le.  It  was 
under  these  circumstances  that  this  Government,  in  1848,  wisely  deter- 
mined that  while  it  maintained  representatives  in  the  capitals  of  every 
other  civilized  state,  and  even  at  the  capitals  of  many  semi-civilized 
states  which  reiect  the  Christian  religion,  it  was  neither  wise  nor  neces- 
sary to  exclude  Rome  from  the  circle  of  our  diplomatic  intercourse.  Thus 
far  tlie  new  relation  then  established  has  proved  pleasant  and  beneficent. 

"  Just  now  Rome  is  the  seat  of  profound  ecclesiastical  and  political 
anxieties,  which,  more  or  less,  affect  all  the  nations  of  Europe.  The  Holy 
Father  claims  immunity  for  the  temporal  power  he  exercises,  as  aright 
incident  to  an  ecclesiastical  authority  which  is  generally  respected  by 
the  European  states. 

"  On  the  other  hand,  some  of  those  states,  with  large  masses  in  other 
states,  assert  that  this  temporal  power  is  without  any  religious  sanction, 
is  unnecessary  and  pernicious.  I  have  stated  the  question  merelyfor  the 
purpose  of  enabling  myself  to  give  you  the  President's  views  of  what 
will  be  your  duty  with  regard  to  it.  That  duty  is  to  forbear  altogether 
from  taking  any  part  in  the  controversy.  The -reasons  for  this  forbear- 
ance are  three :  First,  that  so  far  as  spiritual  or  ecclesiastical  matters 
enter  into  the  question  they  are  beyond  your  province,  for  you  are  a 
political  representative  only.  Second,  so  far  as  it  is  a  question  affecting 
the  Koman  states,  it  is  a  domestic  one,  and  we  are  a  foreign  nation. 
Third,  so  far  as  it  is  a  political  question  merely,  it  is  at  the  same  time 
jnircly  an  European  one,  aud  you  are  an  American  minister,  bound  to 
avoi.l  ull  entangling  connection  with  the  politics  of  that  continent. 

"  This  line  of  conduct  will  nevertheless  allow  you  to  express,  and  you 
are  therefore  instructed  to  express,  to  His  Holiness  the  assurances  of 
the  best  wishes  of  the  CTOvernment  aud  of  the  people  of  the  United 
vStates  for  his  health  and  happiness,  and  for  the  safety  and  prosperitv 
and  happiness  of  the  Roman  people." 

Mr.  Seward,  S.-c.  of  State,  to  Mr.  Blatchford,  Sept.  27,  1862;  MSS.  lust.,  Papal 
States;  Dip.  Corr.,  1862. 

180 


CHAP.  HI.]  GENERAL    RULES.  [§  45. 

"  This  Goveiument  acts  directly  and  sincerely  in  its  intercourse  with 
foreign  nations,  and  no  less  directly  and  sincerely  with  New  Granada 
than  with  all  others.  It  regards  the  government  of  each  state  as  its 
head  until  that  government  is  effectually  displaced  by  the  substitution 
of  another.  It  abstains  from  any  interference  with  its  domestic  affairs 
in  foreign  countries,  and  it  holds  no  unnecessary  communication,  secret 
or  otherwise,  with  revolutionary  parties  or  factions  therein.  It  neither 
seeks  to  prevent  social  or  jmlitical  reforms  in  such  countries  nor  lends 
its  aid  to  reforms  of  them  rightfully  of  which  it  has  neither  the  authority 
nor  the  means  to  judge." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Burton,  Oct.  25,  1862;  MSS.  Inst.,  Colombia. 

"  Mr.  Mercier  has  read  to  me,  and  at  my  request  has  left  with  me,  a 
copy  of  an  instruction  under  the  date  of  the  23d  of  April  last,  which  he 
has  received  from  Mr.  Drouyn  de  I'Huys,  and  which  relates  to  exciting 
and  interesting  events  in  Poland  that  are  now  engaging  the  serious  at- 
tention of  the  principal  states  in  Western  Europe. 

"Mr.  Mercier  has,  at  the  same  time,  favored  me  with  a  copy  of  an 
instruction  relating  to  the  same  events  which  has  been  transmitted  by 
Mr.  Drouyn  de  I'Huys  to  the  embassador  of  France  at  St.  Petersburg. 

"We  learn- from  the  first  of  these  papers  that  the  proceeding  which 
has  thus  been  adopted  at  Paris  with  a  view  to  the  exercise  of  a  moral 
influence  with  the  Emperor  of  Russia,  has  received  the  approbation  and 
concurrence  of  the  court  of  Vienna  and  the  cabinet  at  London,  and  that 
the  Emperor  of  the  French,  justly  appreciating  at  one  aud  the  same 
time  our  historical  sympathy  with  the  Poles,  and  our  ancient  friendship 
with  Russia,  would  be  gratified  with  a  co-operation  in  that  important 
proceeding  by  the  Government  of  the  United  States. 

"Having  taken  the  instructions  of  the  President,  I  am  now  to  com- 
municate our  views  upon  the  subject,  for  the  information  of  Mr.  Drouyn 
de  I'Huys. 

"This  Government  is  profoundly  and  agreeably  impressed  with  the 
consideration  which  the  Emperor  has  manifested  towards  the  United 
States  by  inviting  their  concurrence  in  a  proceeding  having  for  its  ob- 
ject the  double  interests  of  public  order  and  humanity.  Nor  is  it  less 
favorably  impressed  with  the  sentiments  and  the  prudential  considera- 
tions which  the  Emperor  has  in  so  becoming  a  manner  expressed  to  the 
court  of  St.  Petersburg.  Tiiey  are  such  only  as  appeal  to  the  just  emo- 
tions and  best  sympathies  of  mankind.  The  enlightened  and  humane 
character  of  the  Emperor  of  Russia,  so  recently  illustrated  by  the  en- 
franchisement of  a  large  mass  of  the  Russian  people  from  inherited 
bondage,  and  the  establishment  of  an  impartial  and  effective  admin- 
istration of  justice  throughout  his  dominions,  warrant  a  belief  that  tbe 
appeal  will  be  received  and  responded  to  by  him  with  all  the  favor  that 
is  consistent  with  the  general  welfare  of  the  great  state  over  which  he 
presides  with  such  eminent  wisdom  aud  modei'ation. 

181 


A  45.]  INTERVENTION.  [CHAP.  III. 

"  Notwilbstandiug,  however,  the  favor  with  which  we  thus  regard  the 
KUggestiou  of  the  Emperor  of  the  French,  this  Government  finds  an  in- 
surmountable dilllculty  in  the  way  of  any  active  co-operation  with  the 
Governments  of  France,  Austria,  and  Great  Britain,  to  which  it  is  thus 
invited. 

"  Founding  our  institutions  upon  the  basis  of  the  rights  of  man,  the 
builders  of  our  llopublic  came  all  at  once  to  be  regarded  as  political  re- 
formers, and  it  soon  became  manifest  that  revolutionists  in  every  coun- 
try hailed  them  in  that  character,  and  looked  to  the  United  States  for 
efl'ective  sympathy,  if  not  for  active  support  and  patronage.  Our  in 
valuable  Constitution  had  hardly  been  established  when  it  became  nec- 
essary for  the  Government  of  the  United  States  to  consider  to  what 
extent  we  could,  with  propriety,  safety,  and  beneficence,  intervene, 
either  by  alliance  or  concerted  action  with  friendly  powers  or  otherwise, 
in  the  political  affairs  of  foreign  states.  An  urgent  appeal  for  such  aid 
and  sympathy  was  made  in  behalf  of  France,  and  the  appeal  was  sanc- 
tioned and  enforced  by  the  treaty  then  existing  of  mutual  alliance  and 
defense,  a  treaty  without  which  it  may  even  now  be  confessed,  to  the 
honor  of  France,  our  own  sovereignty  and  independence  could  not  have 
been  so  early  secured.  So  deeply  did  this  appeal  touch  the  heart  of  the 
American  people  that  only  the  deference  they  cherished  to  the  counsels 
of  the  Father  of  our  Country,  who  then  was  at  the  fullness  of  his  un- 
approachable moral  greatness,  reconciled  them  to  the  stern  decision 
that,  in  view  of  the  location  of  this  Kepublic,  the  characters,  habits, 
anil  sentiments  of  its  constituent  parts,  and  especially  its  complex  yet 
unique  and  very  popular  Constitution,  the  American  people  must  be 
content  to  recommend  the  cause  of  human  progress  by  the  wisdom  with 
which  they  should  exercise  the  powers  of  self-government,  forbearing 
at  all  times,  and  in  every  way,  from  foreign  alliances,  intervention,  and 
interference. 

"  It  is  true  that  Washington  thought  a  time  might  come  when,  our 
institutions  being  firmly  consolidated  and  working  with  complete  suc- 
cess, we  might  safely  and  perhaps  beneficially  take  part  in  the  consul- 
tations held  by  foreign  states  for  the  common  advantage  of  the  nations. 
Since  that  peiiod  occasions  have  frequently  happened  which  presented 
seductions  to  a  dei)arture  from  what,  superficially  viewed,  seemed  a 
course  of  isolation  and  indifference.  It  is  scarcely  necessary  to  recur 
to  them.  One  was  an  invitation  to  a  congress  of  newly  emancipated 
Spanish  American  states ;  another,  an  urgent  appeal  to  aid  Hungary  in 
a  revolution  aiming  at  the  restoration  of  her  ancient  and  illustrious  in- 
dependence ;  another,  the  project  of  a  joint  guarantee  of  Cuba  to  Spain 
in  concurrence  with  France  and  Great  Britain  ;  and  more  recently,  an 
invitation  to  a  co  operative  demonstration  with  Spain,  France,  and 
Great  Britain  in  Mexico;  and,  later  still,' suggestions  by  some  of  the 
Spanish  American  states  for  a  common  council  of  the  republican  states 
situated  upon  the  American  continent.  These  suggestions  were  suc- 
182 


CHAP.  III.]  GENERAL    RULES.  [§  4"j. 

cessively  disallowed  by  the  Government,  and  its  decision  was  approved 
in  each  case  by  the  deliberate  judgment  of  the  American  people.  Our 
policy  of  non-intervention,  straight,  absolute,  and  peculiar  as  it  may 
seem  to  other  nations,  has  thus  become  a  traditional  one,  which  could 
not  be  abandoned  without  the  most  urgent  occasion,  amounting  to  a 
manifest  necessity.  Certainly  it  could  not  be  wisely  departed  from  at 
this  moment,  when  the  existence  of  a  local,  although  as  we  trust  only 
a  transient  disturbance,  deprives  the  Government  of  the  counsel  of  a 
portion  of  the  American  x)eople,  to  whom  so  wide  a  departure  from  the 
settled  policy  of  the  country  must  in  any  case  be  deeply  interesting. 

"The  President  will  not  allow  himself  to  think  for  a  single  moment 
that  the  Emperor  of  the  French  will  see  anything  but  respect  and 
friendship  for  himself  and  the  people  of  France,  with  good  wishes  for 
the  preservation  of  peace  and  order,  and  the  progress  of  humanity  in 
Europe,  in  the  adherence  of  the  United  States  on  this  occasion  to  the 
policy  which  they  have  thus  far  pursued  with  safety,  and  not  without 
advantage,  as  they  think,  to  the  interests  of  mankind." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  May  11,  1863;  MSS.  Inst.,  France; 
Dip.  Corp.,  1863. 

See, further,  Mr.  Seward  to  Mr.  Motley,  June  20,  July  14, 1863;  Dip.  Corr.,  1863. 

"  So  in  regard  to  our  foreign  relations,  the  conviction  has  universally 
obtained  that  the  true  national  policy  is  one  of  self-reliance  and  self- 
conduct  in  our  domestic  affairs,  with  absolute  non-interference  in  those 
of  other  countries.  These  two  important  ideas  ai^  accepted  with  prac- 
tical universality  in  the  loyal  States,  while  in  the  region  covered  by  the 
insurrection  they  are  resisted  only  by  those  who  have  staked  their  all 
upon  the  fortunes  of  a  desperate  strife. 

"  Under  these  circumstances  Europe,  with  her  attention  already  di- 
verted from  America,  will  no  longer  find  provocation  or  encouragement 
here  for  a  policy  hostile  to  the  settlement  of  our  controversy  upon  the 
basis  of  our  constitutional  union.  I  think,  moreover,  that  she  cannot 
be  long  in  discovering  that,  in  lieu  of  her  x>resent  partial  illicit  trade, 
with  its  constant  annoyances,  she  has  only  to  revoke  her  recognition  of 
the  insurgents  as  a  belligerent  to  secure  a  return  of  peace  with  a  resto- 
ration of  the  commerce  which  prevailed  before  the  civil  war  began. 
True  there  will  for  a  season  be  a  difference  in  the  materials  of  exchange; 
but  one  has  only  to  consider  the  immense  forces  of  population  and  in- 
dustry existing  in  tiie  United  States  to  become  satisfied  that  whenever 
peace  returns,  every  source  of  national  wealth  now  closed  will  soon  be 
made  to  flow  even  more  freely  under  the  application  of  labor  universally 
free  than  it  did  before  while  slavery  was  maintained  as  a  part  of  the 
industrial  economy  of  the  country. 

"  Apprehensions  that  the  aggrandizement  of  the  United  States  as  a 
commercial  power  can  bring  any  practical  inconvenience  or  danger  to 
European  states  can  disturb  none  but  visionary  minds.  We  can  never 
be  dangerous  unless  we  are  armed.     We  were  never  so  great,  and  yet 

183 


^  45.]  INTERVENTION.  [CHAP.  III. 

never  80  completely  unarmed,  as  we  were  when  this  civil  war  broke  out. 
We  were  never  before  so  shorn  of  national  prestige  as  we  are  now 
thron^'li  the  operation  of  domestic  faction;  yet  we  have  never  before 
been  so  slionj;ly  armed  as  we  are  at  this  moment  upon  land  and  water. 
If  we  have  ever  been  aggressive,  it  was  the  interest  of  slavery  that  made 
us  belligerent  abroad,  as  it  was  the  same  interest  that  has  now  afflicted 
ourselves  with  civil  war.  We  can  be  only  a  peaceful  nation  if  we  are 
left  to  enjoy  our  independence  in  the  way  that  our  destiny  leads  us. 
We  can  only  become  a  disturber  of  the  world's  peace  by  being  called 
into  the  world  to  defend  that  independence." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams.  Nov.  30,  1863;  MSS.  lust.  Gr.  Brit. ; 
Dip.  Con-.,  1863. 

"Within  the  last  three  years  it  has  seen  an  attempt  at  revolution  in 
the  ancient  Kingdom  of  Poland,  a  successful  revolution  in  what  was 
New  Grauadn,butnow  is  Colombia,  a  war  between  France  and  Mexico, 
a  civil  war  in  Venezuela,  a  war  between  three  allied  Spanish-American 
Republics  and  Salvador,  and  a  war  between  Colombia  and  Ecuador. 
It  now  sees  a  probability  of  a  war  between  Denmark  and  Germany,  In 
regard  to  such  of  these  conflicts  as  have  actually  occurred,  the  United 
States  have  pursued  the  same  policy,  attended  by  the  same  measure  of 
reserve,  that  they  have  thus  far  followed,  in  regard  to  the  civil  war  in 
Santo  Domingo.  It  is  by  this  policy  that  the  United  States  equally 
avoid  throwing  themselves  across  the  way  of  human  progress,  or  lend- 
ing encouragement  to  factious  revolutions.  Pursuing  this  course,  the 
United  States  leave  to  the  government  and  people  of  every  foreign 
state  the  exclusive  settlement  of  their  own  affairs  and  the  exclusive 
enjoyment  of  their  own  institutions.  Whatever  may  be  thought  by 
other  nations  of  this  policy,  it  seems  to  the  undersigned  to  be  in  strict 
conformity  with  those  prudential  principles  of  international  law — that 
nations  are  equal  in  their  independence  and  sovereignty,  and  that  each 
individual  state  is  bound  to  do  unto  all  other  states  just  what  it  reason- 
ably expects  those  states  to  do  unto  itself." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Tassara,  Feb.  3,  1864  ;  MSS.  Notes  Spain. 

As  t«  keeping  aloof  from  foreign  interests,  see  9  .John  Adams's  Works,  108, 109, 
1 18. 1-29, 136, 20-2, 277, 450,  r.79, 277-8. 

As  to  non-intervention  generally  see  3  John  Adams's  Works,  316 ;  7  id.,  151  -,8  id., 
9, 178;  (and  see  also  discussions  in  10.;  N.Am.  Rev., 476,  October,  1866). 

As  to  intervention  in  respect  to  specific  foreign  states,  see  infra,  ^  5tiff. 

As  to  special  mission  in  reference  to  claims  of  Costa  Rica  on  Nicaragua,  see 
Mr.  Cass,  Sec.  of  State,  to  Mr.  Jones,  July  30,  1857  ;  MSS.  Inst.  Special  Mis- 
sions. 

As  to  non-intervention  in  South  America,  see  supra,  ^6  57.^. 

The  subject  of  territoiial  sovereignty  is  discussed  unpra,  ^  I  ff. 

"The  Pre.sident  wishes  in  no  manner  to  dictate  or  make  any  authora- 
tive  utterance  to  either  Peru  or  Chili  as  to  the  merits  of  the  controversy 
existing  Ix'f.v.-en  tliose  republics,  as  to  what  indemnity  should  be  asked 
184 


CHAP.  III.]  GENERAL    RULES.  [§  45. 

or  given,  as  to  a  change  of  boundaries,  or  as  to  the  personnel  of  the 
Government  of  Peru.  The  President  recognizes  Peru  and  Chili  to  be 
independent  republics,  to  which  he  has  no  right  or  inclination  to  dictate. 
"  Were  the  United  States  to  assjame  an  attitude  of  dictation  towards 
the  South  American  republics,  even  for  the  purpose  of  preventing  war, 
the  greatest  of  evils,  or  to  preserve  the  autonomy  of  nations,  it  must  be 
prepared  by  army  and  navy  to  enforce  its  mandate,  and  to  this  end  tax 
our  people  for  the  exclusive  benefit  of  foreign  nations. 

"The  President's  policy  with  the  South  American  republics  and  other 
foreign  nations  is  that  expressed  in  the  immortal  address  of  Washing- 
ton, with  which  you  are  entirely  familiar.  What  the  President  does 
seek  to  do,  is  to  extend  the  kindly  offices  of  the  United  States  impar- 
tially to  both  Peru  and  Chili,  whose  hostile  attitude  to  each  other  he 
seriously  laments;  and  he  considers  himself  fortunate  in  having  one  so 
competent  as  yourself  to  bring  the  powers  of  reason  and  persuasion  to 
bear  in  seeking  the  termination  of  the  unhappy  controversy ;  and  you 
will  consider  as  revoked  that  portion  of  your  original  instruction  which 
directs  you  on  the  contingency  therein  stated  as  follows: 

"You  will  say  to  the  Chilian  Government  that  the  President  considers 
such  a  proceeding  as  an  intentional  and  unwarranted  offense,  and  that 
you  will  communicate  such  an  avowal  to  the  Government  of  the  United 
States  with  the  assurance  that  it  will  be  regarded  by  the  Government 
as  an  act  of  such  unfriendly  import  as  to  require  the  immediate  suspen- 
sion of  all  diplomatic  intercourse.  You  will  imform  me  immediately  of 
the  happening  of  such  a  contingency,  and  instructions  will  be  sent  you. 

"Believing  that  a  prolific  cause  of  contention  between  nations  is  an 
irritability  which  is  too  readily  offended,  the  President  prefers  that  he 
shall  himself  determine  after  report  has  been  made  to  him  whether 
there  is  or  is  not  cause  for  offense. 

"It  is  also  the  President's  wish  that  you  do  not  visit  (although  indi- 
cated in  your  original  instruction  you  should  do  so),  as  the  envoy  of 
this  government,  the  Atlantic  republics  after  leaving  Chili. 

"The  United  States  is  at  peace  with  all  the  nations  of  the  earth,  and 
the  President  wishes  hereafter  to  determine  whether  it  will  conduce  to 
that  general  peace,  which  he  would  cherish  and  i>romote,  for  this  gov- 
ernment to  enter  into  negotiations  and  consultation  for  the  promotion 
of  peace  with  selected  friendly'  nationalities  without  extending  a  like 
confidence  to  other  peoples  with  whom  the  United  States  is  on  equally 
friendly  terms. 

"  If  such  partial  confidence  would  create  jealousy  and  ill-will,  peace, 
the  object  sought  by  such  consultation,  would  not  be  promoted." 

Mr.   Freliughuysen,   Sec.    of  State,  to  Mr,  Trescot,  Jan.  9.  1882;    MSS.  Inst., 
Chili ;  For.  Rel.,  1882  ;  Doc.  at(  ached  to  Pres.  Mess,  of  Jan.  26  and  27,  1882. 

Mr.  Senior,  in  an  article  in  77  Edinburgh  Review,  334  (1843)|  distin- 
guishes between  intervention  by  one  or  more  states  for  the  purpose  of 
maintaining  the  balance  of  power,  and  intervention  to  interfere  with  the 
political  affairs  of  another  country :  "  The  first  is  the  privilege  of  the  weak 

185 


iji  45.')  INTERVENTION.  [CHAP.  III. 

apaiiist  flic  sfron;;  ;  tlio  socoiid,  tliat  of  the  strong  against  the  weak. 
The  eircunistaiu'cs  thai  give  rise  to  the  first  are  tolerably  definite  and 
nnist  always  be  evident.  Those  which  create  the  second  are  incapable 
of  definition,  and  generally  incapable  of  proof.  If  we  examine  the  state- 
ments ol  evils  snttered  or  apprehended  from  the  domestic  affairs  of  in- 
dependent nations,  on  which  the  most  remarkable  modern  interventions 
have  been  fonnded,  we  shall  find  them  in  general  too  vague  to  be  sus- 
ceptible of  refutation  or  too  frivolous  to  deserve  it."  In  this  article  the 
general  policy  of  intervention  is  discussed  with  much  care.  But  the 
position  that  intervention  to  ])reserve  the  balance  of  power  is  proper 
is  now  generally  abandoned  by  publicists. 

It  is  further  stated  by  Mr.  Senior  (77  Edin.  Bev.,  358)  that  the  British 
Government  in  refusing  to  accede  to  the  declaration  of  the  Holj'  Alliance 
in  1818,  "denied  that  any  general  right  of  interference  against  revolu- 
tionary movements  in  independent  states  was  sanctioned  by  the  law  of 
nations,  or  could  be  made  prospectively'  the  basis  of  an  alliance.  Ad- 
mitting the  right  of  a  state  to  interfere  where  its  own  immediate  secu- 
rity or  essential  interests  were  seriously  endangered  by  the  internal 
transactions  of  another  state,  they  declared  this  right  to  be  an  excep- 
tion to  general  princii)les  of  the  greatest  value;  to  be  capable  of  arising 
only  out  of  the  circumstances  of  each  special  case ;  to  be  justified  only 
by  the  strongest  necessity,  and  to  be  limited  and  regulated  thereby ;  and 
to  be  insusceptible  of  being  so  far  reduced  to  rule  as  to  be  incorporated 
into  the  ordinary  diplomacy  of  states,  or  into  the  institutes  of  the  law 
of  nations." 

See  British  Circular,  Jan.  19,  1821 ;  State  Papers,  1820-'21,  p.  1160. 

"  The  main  difficulty  connected  with  intervention  is  the  following:  It 
may  be  admitted  that  there  are  i)ossibilities  of  tyrannical  usage,  barbar- 
ous piactiees,  or  persistent  and  hopeless  anarchy,  out  of  which  the  friendly 
aid  of  a  generous,  impartial,  and  truly  disinterested  by-stander,  may  be 
the  only  way  to  a  deliverance.  But  two  cautions  have  to  be  observed: 
first,  it  has  to  be  i)rovided  that  the  aid  is  accorded  at  a  time  and  under 
circumstances  which  do  not  in  anyway  prejudge  the  issue  of  a  struggle 
yet  undetermined,  and  which  ought,  in  the  interests  of  the  state  con- 
cerned, to  be  decided  by  the  real  and  internal  and  not  by  the  factitious 
and  external  Hements  of  victory.  The  importance  of  this  consideration 
was  signally  illustrated  in  the  late  insurrection  of  the  Southern  States 
of  the  American  Union,  and  in  the  controversy  that  long  hung  round 
the  questions  whether  England  had  chosen  the  proper  moment  for  ac- 
cording to  the  Southern  Confederacy  the  rights  of  a  belligerent  state, 
and  wliat  was  the  meaning  of  recognition  for  belligerent  purposes." 
Amos,  Remedips  for  War  (X.  Y.,  ed.  1880).  61. 

"A  second  caution  in  respect  to  intervention  is  that,  admitting  the 
propriety  and  duty  of  intervention  in  certain  extreme  crises,  it  is  al- 
ways <)j)cn  to  a  state,  influential,  designing,  and  unscrupulous,  to  foster 
in  ajiother  state,  subject  to  its  moral  control,  the  very  condition  of  things 
whicli  will,  sooner  or  later,  bring  about  a  fit  opportunity  for  its  own 
overt  interference.  Whether  Russia  was  guilty  of  this  conduct  in  the 
case  «>f  the  late  Servian  war  antl  the  Herzegovinian  insurrection,  is  of 
less  importance  here  than  the  fact  that  she  was  constantly  reproached 
with  it.  It  is  a  danger  which  is  almost  inherent  in  the  doctrine  of  a 
right  of  intervention  in  certain  emergencies." 
rbid. 

186 


criAP.  III.]  PROTECTION:    INFORMATION.  [§46,47. 

I.  EXCEPTIONS. 
(1)   EELIEF   and   protection    OF    CITIZENS   ABKOAp, 

§  46. 

Illustrations  of  interventions  of  this  class  will  be  fouijd  in  subsequent 
sections.  {Infra  §§  189,  215.)  This  exception  applies  not  merely  to 
citizens  of  the  United  States,  but  to  persons  domiciled  in  the  United 
States. 

The  rule  is  that  wherever  a  person  of  either  of  these  classes  claims 
when  abroad  the  protection  of  the  Department,  or  redress  in  case  of  in- 
jury, the  Secretary,  on  alMdavits  showing  the  nature  of  the  danger  or 
wrong,  will  instruct  the  minister,  in  the  country  from  which  the  danger 
or  wrong  proceeds',  to  ask  explanation,  and  in  case  of  the  danger  or 
wrong  being  proved,  to  insist  on  relief  or  redress.  (See  infra.,  §§  189, 
213.) 

(2)  Agencies  to  obtain  information  as  to  pending  insurrec- 
tion. 

§  47. 

In  1816,  when  the  acknowledgment  of  the  independence  of  the  South 
American  colonies  was  under  consideration,  Mr.  Monroe  sent  three  com- 
missioners, Csesar  A.  Rodney,  Theoderick  Bland,  and  John  Graham,  in 
a  ship-of-war,  to  visit  the  several  colonies,  inquire  into  the  condition  ot 
things  in  respect  to  the  probability  of  endurance  of  successful  hostili- 
ties, and  then  report.  These  commissioners  were  not  nominated  to  the 
Senate,  though  that  body  was  in  session  when  they  sailed,  but  went  ex- 
clusively on  the  President's  nomination.  Their  expenses  were  not  paid 
out  of  the  contingent  fund,  but  were  met  by  a  vsubsequent  appropriation 
of  $30,000  by  Congress. 

See  3  Schouler's  Hist.  U.  S.,28^;  President  Monroe's  First  Annual  Message, 
1817;  Mr.  Adams,  Sec.  of  State,  to  Mr.  Hyde  de  Neuville,  July  27,  1818; 
MSS.  For.  Leg.  Notes.  As  to  appointment  and  pay  of  such  agents,  see 
infra,  $  78. 

"  During  the  late  conflict  between  Austria  and  Hungary,  there  seemed 
to  be  a  prospect  that  the  latter  might  become  an  inde])endent  nation. 
However  faint  that  prospect  at  the  time  appeared,  I  thought  it  my  duty, 
in  accordance  with  the  general  sentiment  of  the  Americ*;in  people,  who 
deeply  sympathized  with  the  Magyar  patriots,  to  stand  prepared,  upon 
the  contingency  of  the  establishment  by  her  of  a  permanent  govern- 
ment, to  be  the  first  to  welcome  independent  Hungary  into  the  family 
of  nations.  For  this  purpose,  I  invested  an  agent,  then  in  Europe,  with 
power  to  declare  our  willingness  promptly  to  recognize  her  independ- 
ence in  the  event  of  her  abiUty  to  sustain  it.    The  powerful  intervention 

187 


J  47.]  INTERVENTION.  [CHAP.  III. 

of  Russia  in  tbe  coutest  extiui,'uisbed  the  liopcs  vf  the  struggling  Mag- 
yars. The  Uniled  States  did  DOt,  at  any  time,  interfere  in  the  coutest; 
but  the  feeliugs  of  the  nation  were  strongly  eulisted  in  the  cause,  and 
by  the  sulferiugs  of  a  brave  people,  who  had  made  a  gallant  though 
unsuccessful  effort  to  be  free." 

President  Taylor's  First  Animal  Message,  1849.  The  instructions  to  Mr.  Maun 
are  given  in  part  infra  6  70.  (See  comments  in  1  Lawrence  Com.  sur  Droit 
Int.,  201.) 

Mr.  Abdy  (Abdy's  Kent,  1878,  92),  after  speaking  with  high  approval 
of  the  conduct  of  the  United  States  in  delaying  recognition  of  the  in- 
dependence of  the  South  American  states,  and  of  Texas,  until  such  in 
dependence  was  practically  established,  quotes  the  passage  from  Presi- 
dent Taylor's  tirst  annual  message  above  cited,  and  then  proceeds  to 
say : 

"Is  it  necessary  to  criticise  a  document  in  which  two  faults  are  at  all 
events  visible,  the  delegacy  of  sovereign  powers  to  an  agent,  and  its 
victory  of  sympathy  and  sentiment  over  reason  and  law.  What  would 
have  been  thought  of  an  English  minister  who  should  have  directed  an 
agent  in  the  Confederate  States  to  declare  the  willingness  of  England 
promptly  to  recognize  their  independence,  in  the  event  of  their  ability 
to  maintain  it?" 

"  The  undersigned.  Secretary  of  State  of  the  United  States,  had  the 
honor  to  receive  some  time  ago  the  note  of  Mr.  Hiilsemanu,  charg6 
d'aflaires  of  His  Majesty  the  Emperor  of  Austria,  of  the  30th  September. 
Causes  not  arising  from  any  want  of  personal  regard  for  Mr.  Hiilse- 
manu or  of  proper  respect  for  his  Government  have  delayed  an  answer 
until  the  present  moment.  Having  submitted  Mr.  Hiilsemann's  letter 
to  the  President,  the  undersigned  is  now  directed  by  him  to  return  the 
following  reply  : 

"  The  objects  of  Mr.  Hiilsemann's  note  are,  first,  to  protest,  by  order 
of  his  Government,  against  the  steps  taken  by  the  late  President  of  the 
United  States  to  ascertain  the  progress  and  probable  result  of  the  revo- 
lutionary movements  in  Hungary;  and,  secondly,  to  complain  of  some 
expres.sions  in  the  instructions  of  the  late  Secretary  of  State  to  Mr.  A. 
Dudley  Mann,  a  confidential  agent  of  the  United  States,  as  communi- 
cated by  President  Taylor  to  the  Senate  on  the  28th  of  March  last. 

"The  principal  ground  of  protest  is  founded  on  the  idea  or  in  the 
allegation  that  the  Government  of  the  United  States,  by  the  mission  of 
Mr.  .Mann  and  his  instructions,  has  interfered  in  the  domestic  affairs  of 
Austria  in  a  manner  unjust  or  disrespectful  toward  that  power.  The 
Prcsid, .fit's  message  was  a  communication  made  by  him  to  the  Senate, 
tran.smitting  a  correspondence  between  the  Executive  Government  and 
a  confidential  agent  of  its  own.  This  would  seem  to  be  itself  a  domestic 
tran.saction— a  mere  instance  of  intercourse  between  the  President  and 
the  Senate  in  the  manner  which  is  usual  and  indispensable  in  commu- 
nications between  the  different  branches  of  the  Government.  It  was 
not  addressed  either  to  Austria  or  Hungary,  nor  was  it  any  public  mani- 
188 


CHAP.  III.]  AGENCIES    FOR    INFORMATION.  [§  47. 

festo  to  which  auy  foreign  state  was  called  on  to  reply.  It  was  an  ac- 
count of  its  transactions  communicated  by  the  Executive  Government  to 
the  Senate  at  the  request  of  that  body — made  public,  indeed,  but  made 
public  only  because  such  is  the  common  and  usual  course  of  proceed- 
ing— and  it  may  be  regarded  as  somewhat  strange,  therefore,  that  the 
Austrian  cabinet  did  not  i^erceive  that,  by  the  instructions  given  to  Mr. 
Hiilsemann,  it  was  itself  interfering  with  the  domestic  concerns  of  a  for- 
eign state,  the  very  thing  which  is  the  ground  of  its  complaint  against 
the  United  States.     (See  infra,  §  79.) 

"  This  Department  has  on  former  occasions  informed  the  ministers  of 
foreign  powers  that  a  communication  from  the  President  to  either  house 
of  Congress  is  regarded  as  a  domestic  communication,  of  which,  ordi- 
narily, no  foreign  state  has  cognizance,  and  in  more  recent  instances 
the  great  inconvenience  of  making  such  communications  subjects  of 
diplomatic  correspondence  and  discussion  has  been  fully  shown.     If  it 
had  been  the  pleasure  of  His  Majesty  the  Emperor  of  Austria  during 
the  struggles  in  Hungary  to  have  admonished  the  provisional  Govern 
ment  or  the  people  of  that  country  against  involving  themselves  in  dis- 
aster by  following  the  evil  and  dangerous  example  of  the  United  States 
of  America  in  making  efforts  for  the  establishment  of  independent  gov- 
ernments, such  an  admonition  from  that  sovereign  to  his  Hungarian 
subjects  would  not  have  originated  here  a  diplomatic  correspondence. 
The  President  might,  perhaps,  on  this  ground  have  declined  to  direct 
any  particular  reply  to  Mr.  Hiilsemann's  note ;  but  out  of  proper  re- 
spect for  the  Austrian  Government  it  has  been  thought  better  to  an- 
swer that  note  at  length,  and  the  more  especially  as  the  occasion  is  not 
unfavorable  for  the  exi)ression  of  the  general  sentiments  of  the  Govern- 
ment of  the  United  States  upon  the  topics  which  that  note  discusses. 
"  A  leading  subject  in  Mr.  Hiilsemann's  note  is  that  of  the  correspond- 
ence between  Mr.  Htilsemann  and  the  predecessor  of  the  undersigned, 
in  which  Mr.  Clayton,  by  direction  of  the  President,  informed  Mr. 
Hiilsemann  '  that  Mr.  Mann's  mission  had  no  other  object  in  view  than 
to  obtain  reliable  information  as  to  the  true  state  of  affairs  in  Hungary 
by  personal  observation.'     Mr.  Hiilsemann  remarks  that  '  this  explana- 
tion can  hardly  be  admitted,  for  it  says  very  little  as  to  the  cause  of  the 
anxiety  which  was  felt  to  ascertain  the  chances  of  the  revolutionists.' 
As  this,  however,  is  the  onfy^  purpose  which  can,  with  any  appearance 
of  truth,  be  attributed  to  the  agency,  as  nothing  whatever  is  alleged  by 
Mr.  Hiilsemann  to  have  been  either  done  or  said  by  the  agent  incon- 
sistent with  such  an  object,  the  undersigned  conceives  that  Mr.  Clay- 
ton's explanation  ought  to  be  deemed  not  only  admissible,  but  quite 
satisfactory.     Mr.  Hiilsemann  states  in  the  course  of  his  note  that  his 
instructions  to  address   his  present  communication  to   Mr.  Clayton 
reached  Washington  about  the  time  of  the  lamented  death  of  the  late 

189 


§  47.]  INTERVENTION.  [CHAP.  III. 

President,  aud  that  he  delayed  from  a  sense  of  propriety  the  execution 
of  his  task  until  the  new  Administration  should  be  fully  organized,  '  a 
delay  which  he  now  rejoices  at,  as  it  has  given  him  the  opportunity  of 
ascertaining  from  the  new  President  himself,  on  the  occasion  of  the  re- 
ception of  the  diplomatic  corps,  that  the  fundamental  policy  of  the 
United  States,  so  frequently  proclaimed,  would  guide  the  relations  of 
the  American  (iovernraent  with  other  powers.'  Mr.  Hiilsemanu  also 
observes  that  it  is  in  his  power  to  assure  the  undersigned  -  that  the 
Imperial  Government  is  disposed  to  cultivate  relations  of  friendship 
aud  good  understanding  with  the  United  States.'  The  President  re- 
ceives this  assurance  of  the  disposition  of  the  Imperial  Government 
with  great  satisfaction,  and,  in  consideration  of  the  friendly  relations  of 
the  two  Governments  thus  mutually  recognized,  and  of  the  peculiar 
nature  of  the  incidents  by  which  their  good  understanding  is  supposed 
by  3Ir.  Hulsemann  to  have  been,  for  a  moment,  disturbed  or  endan- 
gered, the  President  regrets  that  Mr.  Hiilsemann  did  not  feel  himself  at 
liberty  wholly  to  fotbear  from  the  execution  of  instructions,  which  were 
of  course  transmitted  from  Vienna  without  any  foresight  of  the  state  of 
things  under  which  they  would  reach  Washington.  If  Mr.  Hiilsemann 
saw  in  the  address  of  the  President  to  the  diplomatic  corps,  satisfactory 
pledges  of  the  sentiments  and  the  policy  of  this  Government,  in  regard 
to  neutral  rights  and  neutral  duties,  it  might,  perhaps,  have  been  better 
not  to  bring  on  a  discussion  of  past  transactions.  But  the  undersigned 
readily  admits  that  this  was  a  question  fit  only  for  the  consideration 
and  decision  of  Mr.  Hiilsemann  himself;  and  although  the  President 
does  not  see  that  any  good  purpose  can  be  answered  by  reopening  the 
inquiry  into  the  propriety  of  the  steps  taken  by  President  Taylor,  to 
ascertain  the  probable  issue  of  the  late  civil  war  in  Hungary,  justice  to 
his  memory  requires  the  undersigned  briefly  to  restate  the  history  of 
those  steps,  and  to  show  their  consistency  with  the  neutral  policy  which 
has  invariably  guided  the  Government  of  the  United  States  in  its  foreign 
relations,  as  well  as  with  the  established  and  well -settled  principles  of 
national  intercourse,  and  the  doctrines  of  public  law. 

"  The  undersigned  will  first  observe  that  the  President  is  persuaded 
His  Majesty  the  Emperor  of  Austria  does  not  think  that  the  Govern- 
ment of  the  United  States  ought  to  view,  with  unconcern,  the  extraor- 
dinary events  which  have  occurred,  not  oflly  in  his  dominions,  but  in 
many  other  parts  of  Europe,  since  February,  1848.  The  Government 
and  i)eople  of  the  United  States,  like  other  intelligent  Governments  and 
communities,  take  a  lively  interest  in  the  movements  and  the  events  of 
this  remarkable  age,  in  whatever  part  of  the  world  they  may  be  ex. 
hibited.  But  the  interest  taken  by  the  United  States  in  those  events 
has  not  proceeded  from  any  disposition  to  depart  from  that  neutrality 
toward  foreign  powers  which  is  among  the  deepest  principles  and  the 
most  cherislred  traditions  of  the  political  history  of  the  Union.  It  has 
been  the  necessary  effect  of  the  unexawpled  character  of  the  events 
190 


CHAP.  III.]  Webster's  hulsemann  note.  [§  47. 

themselves,  which  could  not  fail  to  arrest  the  attention  of  the  contem- 
porary world,  as  they  will  doubtless  fill  a  memorable  page  in  history. 
But  the  undersigned  goes  further,  and  freely  admits  that  in  proportion 
as  these  extraordinary  events  appeared  to  have  their  origin  in  those 
great  ideas  of  responsible  and  popular  governments,  on  which  the 
American  constitutions  themselves  are  wholly  founded,  they  could  not 
but  command  the  warm  sympathy  of  the  people  of  this  country. 

"  Well  known  circumstances  in  their  history,  indeed  their  whole  his- 
tory, have  made  them  the  representatives  of  purely  popular  principles  of 
government.  In  this  light  they  now  stand  before  the  world.  They 
could  not,  if  they  would,  conceal  their  character,  their  condition,  or  their 
destiny.  They  could  not,  if  they  so  desired,  shut  out  from  the  view  of 
mankind  the  causes  which  have  placed  them,  in  so  short  a  national 
career,  in  the  station  which  they  now  hold  among  the  civilized  states 
of  the  world.  They  could  not,  if  they  desired  it,  suppress  either  the 
thoughts  or  the  hopes  which  arise  in  men's  minds,  in  other  countries, 
from  contemplating  their  successful  example  of  free  government.  That 
very  intelligent  and  distinguished  personage,  the  Emperor  Joseph  the 
Second,  was  among  the  first  to  discern  this  necessary  consequence  of 
the  American  Eevolution  on  the  sentiments  and  opinions  of  the  people 
of  Europe.  In  a  letter  to  his  minister  in  The  Netherlands  in  1787,  he 
observes  that  '  it  is  remarkable  that  France,  by  the  assistance  which 
she  afforded  to  the  Americans,  gave  birth  to  reflections  on  freedom.' 
This  fact,  which  the  sagacity  of  that  monarch  perceived  at  so  early  a 
day,  is  now  known  and  admitted  by  intelligent  powers  all  over  the 
world.  True,  indeed,  it  is,  that  the  prevalence  on  the  other  continent 
of  sentiments  favorable  to  republican  liberty,  is  the  result  of  the  reaction 
of  America  upon  Europe ;  and  the  source  and  center  of  this  reaction  has 
doubtless  been,  and  now  is,  in  these  United  States.  The  position  thus 
belonging  to  the  United  States  is  a  fact  as  inseparable  from  their  his 
tory,  their  constitutional  organization,  and  their  character,  as  the  oppo- 
site position  of  the  powers  composing  the  European  alliance  is  from  the 
liistory  and  constitutional  organization  of  the  Government  of  those 
powers.  The  sovereigns  who  form  that  alliance  have  not  unfrequently 
felt  it  their  right  to  interfere  with  the  political  movements  of  foreign 
states  ;  and  have,  in  their  manifestoes  and  declarations,  denounced  the 
popular  ideas  of  the  age  in  terms  so  comprehensive  as  of  necessity  to 
include  the  United  States,  and  their  forms  of  government.  It  is  well 
known  that  one  of  the  leading  principles  announced  by  the  allied  sov- 
ereigns, after  the  restoration  of  the  Bourbons,  is,  that  all  popular  or 
constitutional  rights  are  holden  no  otherwise  than  as  grants  and  in- 
dulgences from  crowned  heads.  'Useful  and  necessary  changes  in 
legislation  and  administration,'  says  the  Laybach  Circular  of  May,  1841, 
'oujiht  only  to  emanate  from  the  freewill  and  intelligent  conviction 
of  those  whom  God  has  rendered  responsible  for  power ;  all  that  devi- 
ates from  this  line  necessarily  leads  to  disorder,  commotions,  and  evils 

191 


^  47]  INTERVENTION.  [CHAP.  III. 

i'ar  luoie  insulieiable  than  those  which  they  pretend  to  remedy.'  And 
liis  late  Austrian  Majesty,  Francis  I,  is  reported  to  have  declared  in  an 
addivss  to  llic  TIuM;:;ariau  Diet,  in  1820,  that  'the  whole  world  had 
bcfoine  toolisli,  and,  leaving  their  ancient  laws,  was  in  search  of  im- 
a""iiiary  constitutions.'  These  declarations  amount  to  nothing  less  than 
a  denial  of  the  lawfulness  of  the  origin  of  the  Government  of  the  United 
States,  since  it  is  certain  that  that  Government  was  established  in  con- 
sequence of  a  change  which  did  not  proceed  from  thrones,  or  the  per- 
mission of  crowned  heads.  But  the  Government  of  the  United  States 
heard  these  denunciations  of  its  fundamental  principles  without  re. 
monstrance,  or  the  disturbance  of  its  equanimity.  This  was  thirty  years 
ago. 

"The  power  of  this  Eeimblic,  at  the  present  moment,  is  spread  over  a 
region,  one  of  the  richest  and  most  fertile  on  the  globe,  and  of  an  extent 
in  comparison  with  which  the  possessions  of  the  house  of  Hapsburg 
are  but  as  a  patch  on  the  earth's  surface.  Its  population,  already 
35.000,000,  will  exceed  that  of  the  Austrian  Empire  within  the  period 
during  which  it  may  be  hoped  that  M.  Hiilsemann  may  yet  remain  in 
the  honorable  discharge  of  his  duties  to  his  Government.  Its  naviga- 
tion and  commerce  are  hardly  exceeded  by  the  oldest  and  most  com- 
mercial nations;  its  maritime  means  and  its  maritime  power  may  be 
seen  by  Austria  herself,  in  all  seas  where  she  has  ports,  as  well  as  it 
may  be  seen,  also,  in  all  other  quarters  of  the  globe.  Life,  liberty,  prop- 
erty, and  all  personal  rights  are  amply  secured  to  all  citizens,  and  pro- 
tected by  just  and  stable  laws;  and  credit,  public  and  private,  ie  as 
well  established  as  in  any  Government  of  continental  Europe.  And  the 
country,  in  all  its  interests  and  concerns,  partakes  most  largely  in  all 
the  improvements  and  progress  which  distinguish  the  age.  Certainly, 
the  United  States  may  be  pardoned,  even  by  those  who  profess  adher- 
ence to  the  principles  of  absolute  Governments,  if  they  entertain  an 
ardent  aft'ection  for  those  popular  forms  of  political  organization  which 
have  so  rapi<lly  advanced  their  own  prosperity  and  happiness,  and  en- 
abled them,  in  so  short  a  period,  to  bring  their  country  and  the  hemi- 
sphere to  wliich  it  belongs,  to  the  notice  and  respectful  regard,  not  to  say 
the  admiration,  of  the  civilized  world.  Nevertheless,  the  United  States 
have  abstained,  at  all  times,  from  acts  of  interference  with  the  political 
changes  of  Europe.  They  cannot,  however,  fail  to  cherish  always  a 
lively  interest  in  the  fortunes  of  nations  struggling  for  institutions  like 
their  own.  I'.ut  this  sympathy,  so  for  from  being  necessarily  a  hostile 
feeling  toward  any  of  the  parties  to  these  great  national  struggles,  is 
quite  consistent  with  amicable  relations  with  them  all.  The  Hungarian 
I)eople  are  threi^  or  four  times  as  numerous  as  the  inhabitants  of  these 
United  States  were  when  the  American  Kevolution  broke  out.  They 
possess,  in  a  distinct  language,  and  in  other  respects,  important  ele- 
ments of  a  si'piuiite  nationality,  which  the  Anglo  Saxon  race  in  this 
eountry  did  not  jmssess;  and  if  the  Unit«-d  States  wish  success  to  coun- 
192 


CHAP.  III.]  Webster's  hulsemann  note.  [§  47. 

tries  contending  for  popular  constitutioius  and  national  independence, 
it  is  onlj"  because  they  regard  such  constitutions  and  such  national  in- 
dependence, not  as  imaginary,  but  as  real  blessings.  They  claim  no 
right,  however,  to  tiike  part  in  the  struggles  of  foreign  powers  in  order 
to  promote  these  ends.  It  is  only  in  defense  of  his  own  Government, 
and  its  principles  and  character,  that  the  undersigned  has  now  expressed 
himself  on  this  subject.  But  when  the  United  States  behold  the  peojjle 
of  foreign  countries  without  any  such  interference,  spontaneously  mov- 
ing toward  the  adoption  of  institutions  like  their  own,  it  surely  cannot 
be  expected  of  them  to  remain  wholly  indifferent  spectators. 

"  In  regard  to  the  recent  very  important  occurrences  in  the  Austrian 
Empire,  the  undersigned  freely  admits  the  difficulty  which  exists  in  this 
country,  and  is  alluded  to  by  Mr.  Hiilsemaun,  of  obtaining  accurate 
information.  But  this  difficulty  is  by  no  means  to  the  ascribed  to  what 
Mr.  Hiilsemaun  calls — with  little  justice,  as  it  seems  to  the  undersigned — 
'the  mendacious  rumors  propagated  by  the  American  press.'  For 
information  on  this  subject,  and  others  of  the  same  kind,  the  American 
press  is,  of  necessity,  almost  wholly  dependent  upon  that  of  Europe; 
and  if  '  mendacious  rumors '  respecting  Austrian  and  Hungarian  affairs 
have  been  anywhere  propagated,  that  propagation  of  falsehoods  has 
been  most  prolific  on  the  European  continent,  and  in  countries  immedi- 
ately bordering  on  the  Austrian  Empire.  But,  wherever  these  errors 
may  have  originated,  they  certainly  justified  the  late  President  in  seeking 
true  information  through  authentic  channels.  His  attention  was,  first, 
particularly  drawn  to  the  state  of  things  in  Hungary,  by  the  correspond- 
ence of  Mr.  Stiles,  charge  d'affaires  of  the  United  States  at  Vienna.  In 
the  autumn  of  1848,  an  ai^plication  was  made  to  this  gentleman,  on  be- 
half of  Mr.  Kossuth,  formerly  minister  of  finance  for  the  Kingdom  of 
Hungary  by  Imperial  appointment,  but  at  the  time  the  application  was 
made  chief  of  the  revolutionary  Government.  The  object  of  this  appli- 
cation was  to  obtain  the  good  offices  of  Mr.  Stiles  with  the  Imperial 
Government,  with  a  view  to  the  suspension  of  hostilities.  This  appli- 
cation became  the  subject  of  a  conference  between  Prince  Schwarzen- 
berg,  the  imperial  minister  for  foreign  affairs,  and  Mr.  Stiles.  The 
prince  commended  the  considerateuess  and  j^ropriety  with  which  Mr. 
Stiles  had  acted ;  and,  so  far  from  disapproving  his  interference,  advised 
him,  in  case  he  received  a  further  communication  from  the  revolution- 
ary Government  in  Hungary,  to  have  an  interview  with  Prince  Win- 
dischgratz,  who  was  charged  by  the  Emperor  with  the  proceedings 
determined  on  in  relation  to  that  Kingdom.  A  week  after  these  occur- 
rences, Mr.  Stiles  received,  through  a  secret  channel,  a  communication 
signed  by  L.  Kossuth,  president  of  the  committee  of  defense,  and  coun- 
tersigned by  Francis  Pulsky,  secretary  of  state.  On  the  receipt  of  this 
communication,  Mr.  Stiles  had  an  interview  with  Prince  Windischgratz, 
'who  received  him  with  the  utmost  kindness,  and  thanked  him  for  his 
efforts  toward  reconciling  the  existing  difficulties.'  Such  were  the  iu- 
S,  Mis,  102— VOL.  I 13  193 


^^  47.]  INTERVENTION.  [CHAP.  III. 

cidcMits  whicli  first  drew  the  attention  of  the  Government  of  the  United 
States  particularly  to  the  affairs  of  Hungary  and  the  conduct  of  Mr. 
Stiles,  though  acting  without  instructions  in  a  matter  of  much  delicacy, 
having  been  viewed  with  satisfaction  by  the  Imperial  Government,  was 
approved  by  that  of  the  United  States. 

"In  the  course  of  the  year  1848  and  in  the  early  part  of  1849,  a  consid- 
eral)le  number  of  Hungarians  came  to  the  United  States.  Among  them 
were  individuals  representing  themselves  to  be  in  the  confidence  of  the 
revolutionary  government,  and  by  these  persons  the  President  was 
strongly  urged  to  recognize  the  existence  of  that  government.  In  these 
applications,  and  in  the  manner  in  which  they  were  viewed  by  the  Presi- 
dent, there  was  nothing  unusual;  still  less  was  there  anj'thing  unau- 
thorized by  the  law  of  nations.  It  is  the  right  of  every  independent 
state  to  enter  into  friendly  relations  with  every  other  independent 
state.  Of  course,  questions  of  prudence  naturally  arise  in  reference 
to  new  states,  brought  by  successful  revolutions  into  the  family  of  na- 
tions; but  it  is  not  to  be  required  of  neutral  powers  that  they  should 
await  the  recognition  of  the  new  government  by  the  parent  state.  No 
principle  of  public  law  has  been  more  frequently  acted  upon,  within  the 
last  thirty  years,  by  the  great  powers  of  the  world  than  this.  Within 
that  period  eight  or  ten  new  stales  have  CvStablished  independent  gov- 
ernments within  the  limits  of  the  colonial  dominions  of  Spain  on  this 
coiitineut;  and  in  Europe  the  same  thing  has  been  done  by  Belgium 
and  Greece.  The  existence  of  all  these  governments  was  recognized 
by  some  of  the  leading  ])owers  of  Europe,  as  well  as  by  the  United 
States,  before  it  w;is  acknowledged  by  the  states  from  which  they  had 
separated  themselves,  li,  therefore,  the  United  States  had  gone  so  far 
as  formally  to  acknowledge  the  independence  of  Hungary,  although,  as 
the  result  has  proved,  it  would  have  been  a  precipitate  step,  and  one 
from  which  no  benefit  would  have  resulted  to  either  party,  it  would 
not,  nevertheless,  have  been  an  act  against  the  law  of  nations,  provided 
they  took  no  part  in  her  contest  with  Austria.'  But  the  United  States 
did  no  snob  thing.  Not  only  did  they  not  yield  to  Hungary  any  actual 
countenance  or  succor;  not  only  did  they  not  show  their  ships  of  war 
in  the  Adriatic  with  any  meuaciug  or  hostile  aspect,  but  they  studiously 
abstained  from  everything  which  had  not  been  done  in  other  cases  in 
times  past,  an<l  contented  themselves  with  instituting  an  inquiry  into 
the  trutli  and  reality  of  alleged  political  occurrences.  Mr.  Hiilsemann 
incorrectly  states,  unintentionally  certainly,  the  nature  of  the  mission 
of  this  agent,  when  he  says  that  '  a  United  States  agent  had  been  dis- 
patched to  Vienna  witii  orders  to  watch  for  a  favorable  moment  to  recog- 
nize the  Hungarian  republic,  and  to  conclude  a  treaty  of  commerce  with 
the  same.'  This,  indeed,  would  have  been  a  lawful  object,  but  Mr. 
Mann's  errand  was.  in  the  first  instance,  purely  one  of  inquiry.  He  had 
no  power  to  act,  unless  he  had  first  come  to  the  conviction  that  a  firm 
and  stable  Hungarian  government  existed.  '  The  principal  object  the 
194 


CHAP.  III.]  Webster's  hulsemann  note.  [§  47. 

President  has  in  view,'  according  to  his  instructions, '  is  to  obtain  minute 
and  reliable  iulbrmatiou  in  regard  to  Hungary  in  connection  with  the 
affairs  of  adjoining  countries,  the  probable  issue  of  the  present  revolu- 
tionary movements,  and  the  chances  we  may  have  of  forming  commercial 
arrangements  with  that  power  favorable  to  the  United  States.'  Again, 
in  the  same  paper,  it  is  said :  '  The  object  of  the  President  is  to  obtain 
information  in  regard  to  Hungary,  and  her  resources  and  prospects, 
with  a  view  to  an  early  recognition  of  her  independence  and  the  forma- 
tion of  commercial  relations  with  her.'  It  was  only  in  the  event  that 
the  new  government  should  appear,  in  the  opinion  of  the  agent,  to  be 
firm  and  stable,  that  the  President  proposed  to  recommend  its  recogni- 
tion. 

"  Mr.  Hiilsemann,  in  qualifying  these  steps  of  President  Taylor  with 
the  epithet  of  'hostile,'  seems  to  take  for  granted  that  the  inquiry 
could,  in  the  expectation  of  the  President,  have  but  one  result,  and 
that  favorable  to  Hungary.  If  this  were  so,  it  would  not  change  the 
case.  But  the  American  Government  sought  for  nothing  but  truth ;  it 
desired  to  learn  the  facts  through  a  reliable  channel.  It  so  happened,  in 
the  chances  and  vicissitudes  of  human  affairs,  that  the  result  was  ad- 
verse to  the  Hungafian  revolution.  The  American  agent,  as  was 
stated  in  his  instructions  to  be  not  unlikely,  found  the  condition  of 
Hungarian  affairs  less  prosperous  than  it  had  been,  or  had  been  be- 
lieved to  be.  He  did  not  enter  Hungary,  nor  hold  any  direct  commu- 
nication with  her  revolutionary  leaders.  He  reported  against  the  recog- 
nition of  her  independence,  because  he  found  she  had  been  unable  to  set 
up  a  firm  and  stable  government.  He  carefully  forbore,  as  his  instruc- 
tions required,  to  give  publicity  to  his  mission,  and  the  undersigned 
supposes  that  the  Austrian  Government  first  learned  its  existence  from 
the  communications  of  the  President  to  the  Senate. 

"  Mr.  Hiilsemann  will  observe  from  this  statement  that  Mr.  Mann's  mis- 
sion was  wholly  unobjectionable,  and  strictly  within  the  rule  of  the  law 
of  nations,  and  the  duty  of  the  United  States  as  a  neutral  power.  He 
will  accordingly  feel  how  little  foundation  there  is  for  his  remark, 
that  ^  those  who  did  not  hesitate  to  assume  the  responsibility  of  send- 
ing Mr.  Dudley  Mann  on  such  an  errand,  should,  independent  of  con- 
siderations of  propriety,  have  borne  in  mind  that  they  were  exposing 
their  emissary  to  be  treated  as  a  spy.'  A  spy  is  a  person  sent  by  one 
belligerent  to  gain  secret  information  of  the  forces  and  defenses  of  the 
other,  to  be  used  for  hostile  purposes.  According  to  practice,  he  may 
use  deception,  under  the  penalty  of  being  lawfully  hanged  if  detected. 
To  give  this  odious  name  and  character  to  a  confidential  agent  of  a  neu- 
tral power,  bearing  the  commission  of  his  country,  and  sent  for  a  pur- 
pose fully  warranted  by  the  law  of  nations,  is  not  only  to  abuse  language, 
but  also  to  confound  all  just  ideas,  and  to  announce  the  wildest  and 
most  extravagant  notions,  such  as  certainlj^  were  not  to  have  been 
pxpected  in  a  grave  diplomatic  paper ;  and  the  President  directs  the 

1U§ 


iS  47.]  INTERVENTION.  [CHAP.  III. 

uiulersigned  to  say  to  Mr.  Hulseiuaun  tbat  the  American  Government 
would  regard  such  an  imputation  upon  it  by  the  cabinet  of  Austria,  as 
that  it  employs  spies,  and  that  in  a  quarrel  none  of  its  own,  as  distinctly 
offensive,  if  it  did  not  presume,  as  it  is  willing  to  presume,  that  the  word 
used  in  the  oiij^inal  German  was  not  of  equivalent  meaning  with  'spy' 
in  the  English  language,  or  that  in  some  other  way  the  employment  of 
such  an  opprobrious  terra  may  be  explained.  Had  the  Imperial  Gov- 
ernment of  Austria  subjected  Mr.  Mann  to  the  treatment  of  a  spy,  it 
would  have  placed  itself  without  the  pale  of  civilization,  and  the  cabi- 
net of  Vienna  may  be  assured  that  if  it  had  carried,  or  attempted  to 
carry,  any  such  lawless  purpose  into  effect  in  the  case  of  an  authorized 
agent  of  this  Government  the  spirit  of  the  people  of  this  country  would 
have  demanded  immediate  hostilities  to  be  waged  by  the  utmost  exer- 
tion of  the  power  of  the  Republic — military  and  naval. 

"Mr.  niilsemann  proceeds  to  remark  that  'this  extremely  painful  in- 
cident, therefore,  might  have  been  passed  over  without  any  written 
evidence  being  left  on  our  part  in  the  archives  of  the  United  States  had 
not  General  Taylor  thought  proper  to  revive  the  whole  subject  by  com- 
municating to  the  Senate,  in  his  message  of  the  18th  [28th]  of  last  March, 
the  instructions  with  which  Mr.  Mann  had  beeq  furnished  on  the  occa- 
sion of  his  mission  to  Vienna.  The  publicity  which  has  been  given  to 
that  document  has  placed  the  Imperial  Government  under  the  necessity 
of  entering  a  formal  protest,  through  its  oflScial  representative,  against 
the  proceedings  of  tbe  American  Government  lest  that  Government 
should  construe  our  silence  into  approbation,  or  toleration  even,  of  the 
principles  which  appear  to  have  guided  its  action  and  the  means  it  has 
adopted.'  The  undersigned  reasserts  to  Mr.  Hiilsemann  and  to  the 
cabinet  of  Vienna,  and  in  the  presence  of  the  world,  that  the  steps 
taken  by  President  Taylor,  now  protested  against  by  the  Austrian 
Government,  were  warranted  by  the  law  of  nations  and  agreeable  to 
the  usages  of  civilized  states.  With  respect  to  the  communication  of 
Mr.  Mann's  instructions  to  the  Senate,  and  the  language  in  which  they 
are  couched,  it  has  already  been  said— and  Mr.  Hiilsemann  must  feel 
the  justice  of  the  remark — that  these  are  domestic  affairs,  in  reference 
to  which  the  Government  of  the  United  States  cannot  admit  the  slight- 
est responsibility  to  the  Government  of  His  Imperial  Majesty.  No  state 
deserving  tlie  appellation  of  independent  can  permit  the  language  in 
which  it  may  instruct  its  own  officers  in  the  discharge  of  their  duties  to 
itself  to  be  called  in  question  under  any  pretext  by  a  foreign  power; 
but  even  if  this  were  not  so,  Mr.  Hiilsemann  is  in  an  error  in  stating 
that  the  Austrian  Government  is  called  an  'iron  rule'  in  Mr.  Mann's 
instructions.  That  phra.se  is  not  found  ii.  the  paper,  and  in  resi)ect  to 
the  honorary  epithet  bestowed  in  :\Ir.  Mann's  instructions  on  the  late 
chief  of  the  revolutionary  government  of  Hungary  Mr.  Hulsemann 
will  bear  in  mind  that  the  Government  of  the  United  States  cannot 
justly  be  expected,  in  a  confidential  communication  to  its  own  agent,  to 
196 


CHAP.  III.]  Webster's  hulsemann  note.  [§  47. 

withhold  from  an  individual  an  epithet  of  distinction  of  which  a  great 
part  of  the  world  thinks  him  worthy  merely  on  the  ground  that  his  own 
Government  regards  him  as  a  rebel.  At  an  early  stage  of  the  American 
Eevolution,  while  Washington  was  considered  by  the  English  Govern 
ment  as  a  rebel  chief,  he  was  regarded  on  the  continent  of  Europe  as  an 
illustrious  hero ;  but  the  uudersigned  will  take  the  liberty  of  bringing 
the  cabinet  of  Vienna  into  the  presence  of  its  own  predecessors,  and  of 
citing  for  its  consideration  the  conduct  of  the  imperial  Government 
itself.  In  the  year  1777  the  war  of  the  American  Kevolution  wi^e  raging 
all  over  these  United  States.  England  was  prosecuting  that  war  with 
a  most  resolnto  determination,  and  by  the  exertion  of  all  her  military 
means  to  the  fullest  extent.  Germany  was  at  that  time  at  peace  with 
England,  and  yet  an  agent  of  that  Congress,  which  was  looked  upon  by 
England  in  no  other  light  than  that  of  a  body  in  open  rebellion,  was  not 
only  received  with  great  respect  by  the  embassador  of  the  Emj^ress 
Queen  at  Paris,  and  by  the  minister  of  the  Grand  Duke  of  Tuscany, 
who  afterwards  mounted  the  imperial  throne,  but  resided  in  Vienna  for 
a  considerable  time — not,  indeed,  officially  acknowledged,  but  treated 
with  courtesy  and  respect,  and  the  Emperor  suffered  himself  to  be  per- 
suaded by  that  agent  to  exert  himself  to  prevent  the  German  powers 
from  furnishing  troops  to  England  to  enable  her  to  suppress  the  rebell- 
ion in  America.  Isl^either  Mr.  Hiilsemann  nor  the  cabinet  of  Vienna,  it 
is  presumed,  will  undertake  to  say  that  anything  said  or  done  by  this 
Government  in  regard  to  the  recent  war  between  Austria  and  Hungary 
is  not  borne  out,  and  much  more  than  borne  out,  by  this  example  of  the 
imperial  court.  It  is  believed  that  the  Emperor,  Joseph  the  Second, 
habitually  spoke  in  terms  of  respect  and  admiration  of  the  character  of 
Washington,  as  he  is  known  to  have  done  of  that  of  Franklin,  and  he 
deemed  it  no  infraction  of  neutrality  to  inform  himself  of  the  progress 
of  the  Eevolutionary  struggle  in  America,  nor  to  express  his  deep  sense 
of  the  merits  and  the  talents  of  those  illustrious  men  who  were  then 
leading  their  country  to  independence  and  renown.  The  undersigned 
may  add  that  in  1781  the  courts  of  Eussia  and  Austria  proposed  a  diplo- 
matic congress  of  the  belligerent  powers,  to  which  the  commissioners 
of  the  United  States  should  be  admitted. 

"  Mr.  Hiilsemann  thinks  that  in  Mr.  Mann's  instructions  improper 
expressions  are  introduced  in  regard  to  Eussia,  but  the  undersigned 
has  no  reason  to  suppose  that  Eussia  herself  is  of  that  opinion.  The 
only  observation  made  in  those  instructions  about  Eussia  is  that  she 
'  has  chosen  to  assume  an  attitude  of  interference,  and  her  immense 
prei)aratious  for  invading  and  reducing  the  Hungarians  to  the  rule  of 
Austria,  from  which  they  desire  to  be  released,  gave  so  serious  a  char- 
acter to  the  contest  as  to  awaken  the  most  painful  solicitude  in  the 
minds  of  Americans.'  The  undersigned  cannot  but  consider  the  Aus- 
trian cabinet  as  unnecessarily  susceptible  in  looking  upon  language  like 

197 


^47.]  INTERVENTION.  [cHAP.  III. 

this  as  a  '  bo:st  ile  (k'liioDStration.'  If  we  remember  that  it  was  addressed 
by  the  Govern nicnt  to  its  own  iigeut,  and  has  received  publicity  ouly 
throuf^h  a  comnumication  from  oue  department  of  the  American  Gov- 
ernment to  another,  the  language  quoted  must  be  deemed  moderate  and 
iuofiensive.  The  comity  of  nations  would  hardly  forbid  its  being  ad- 
dressed to  the  two  imperial  powers  themselves.  It  is  scarcely  neces- 
sary for  the  undersigned  to  say  that  the  relations  of  the  United  States 
with  Eussia  have  always  been  of  the  most  friendly  kind,  and  have  never 
been  deemed  by  either  party  to  require  any  compromise  of  their  jjecu- 
liar  views  upon  subjects  of  domestic  or  foreign  polity  or  the  true  origin 
of  Governments.  At  any  rate,  the  fact  that  Austria  in  her  contest 
with  Hungary  had  an  intimate  and  faithful  ally  in  Russia  cannot  alter 
the  real  nature  of  the  question  between  Austria  and  Hungary,  nor  in 
any  way  affect  the  neutral  rights  and  duties  of  the  Government  of  the 
United  States  or  the  justifiable  sympathies  of  the  American  people.  It 
is,  indeed,  easy  to  conceive  that  favor  toward  struggling  Hungary 
would  be  not  diminished,  but  increased,  when  it  was  seen  that  the  arm 
of  Austria  was  strengthened  and  upheld  by  a  power  whose  assistance 
threatened  to  be,  and  which  in  the  end  proved  to  be,  overwhelmingly 
destructive  of  all  her  hopes. 

"Toward  the  conclusion  of  his  note  Mr.  Hiilsemann  remarks  that  'if 
the  Government  of  the  United  States  were  to  think  it  proper  to  take  an 
indirect  part  in  the  political  movements  of  Euroj^e,  American  policy 
would  be  exposed  to  acts  of  retaliation  and  to  certain  inconveniences 
which  would  not  fail  to  affect  the  commerce  and  industry  of  the  two 
hemi.spheres.'  As  to  this  possible  fortune — this  hypothetical  retalia- 
tion— the  Government  and  people  of  the  United  States  are  quite  will- 
ing to  take  their  chances  and  abide  their  destiny.  Taking  neither  a 
direct  nor  an  indirect  part  in  the  domestic  or  intestine  movements  of 
Europe,  they  have  no  fear  of  events  of  the  nature  alluded  to  by  Mr. 
Hiilsemann.  It  would  be  idle  now  to  discuss  with  Mr.  Hiilsemann  those 
acts  of  retaliation  which  he  imagines  may  possibly  take  place  at  some 
indefinite  time  hereafter.  Those  questions  will  be  discussed  when  they 
arise,  and  Mr.  Hiilsemann  and  the  cabinet  at  Vienna  may  rest  assured 
that,  in  the  mean  time,  while  performing  with  strict  and  exact  fidelity 
all  their  neutral  duties,  nothing  will  deter  either  the  Government  or  the 
people  of  the  United  States  from  exercising,  at  their  own  discretion,  the 
rights  belonging  to  them  as  an  independent  nation,  and  of  forming  and 
expressing  their  own  opinions,  freely  and  at  all  times,  upon  the  great 
political  events  which  may  transpire  among  the  civilized  nations  of  the 
earth.  Their  own  institutions  stand  upon  the  broadest  principles  of 
civil  liberty,  and  believing  those  principles  and  the  fundamental  laws 
in  which  they  are  embodied  to  be  eminently  favorable  to  the  prosperity 
of  states— to  be,  in  fact,  the  only  principles  of  government  which  meet 
the  demands  of  the  present  enlightened  age— the  President  has  per- 
lOS 


CHAP.  Ill.J  AGE^'CIKS    FOR    INFORMATION.  §  47. 

ceived  with  great  satiNlactiou  that,  in  the  constitution  recently  intro- 
duced into  the  Austrian  Empire,  many  of  these  great  principles  are  rec- 
ognized and  applied,  and  he  cherishes  a  sincere  wish  that  they  may  pro- 
duce the  same  happy  efi'ects  throughout  his  Austrian  Majesty's  exten- 
sive dominions  that  they  have  done  in  the  United  States." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Hiilsemauu,  Dec.  21,  1850.  MSS.  notes, 
Austria;  G  Webster's  Works,  488,^. 

The  correspondence  with  Austria  in  respect  to  the  Mann  agency  will  be  found  in 
the  British  and  Foreign  State  Papers  for  l>-49-'.50,  Vol.  50,  254,  Hiilsemann's 
Corres.  A  fictitious  reply,  said  to  have  been  made  by  Mr.  Hiilsemann  to 
Mr.  Webster,  was  published  as  a  sort  of  hoax  in  several  papers  in  the 
United  States,  and  was  republished  as  authentic  in  L'Anuuaire  de  Lesur  of 
1851,  in  page  183  of  the  .ippeudix.  See  statement  by  Mr.  Lawrence,  1  Law- 
rence, Com.  sur  Droit  int.,  204,  that  he  was  informed  by  Mr.  Everett,  who 
succeeded  Mr.  Webster,  that  the  letter  was  a  forgery. 

The  object  of  Mr.  A.  D.  Mann's  mission  to  Hungary  is  thus  stated 
by  Mr.  G.  T.  Curtis :  (2  Curtis'  Life  of  Webster,  533.) 

"  In  June,  1849,  President  Taylor  appointed  an  agent,  Mr.  A.  Dud- 
ley Mann,  under  secret  instructions,  to  proceed  to  Hungary,  for  the 
purpose  of  obtaining  accurate  information  concerning  the  progress  of 
the  revolution  in  that  country,  with  a  view  of  acknowledging  her  inde- 
pendence, in  case  of  her  succeeding  in  establishing  a  government  de 
facto  on  a  basis  sufiiciently  permanent  in  its  character  to  justify  that 
step  according  to  the  practice  of  our  government  in  similar  cases. 
This  agent,  however,  did  not  enter  Hungary,  or  hold  any  direct  com- 
munication with  her  revolutionary  leaders;  for,  on  his  arrival  in  Euro])e, 
the  efforts  of  these  leaders  to  set  up  a  firm  and  stable  government  had 
failed,  in  consequence  of  which  he  reported  to  the  President  against  the 
recognition  of  Hungarian  independence. 

''In  March,  1850,  the  Senate  having  called  ft)r  a  copy  of  Mr.  Mann's 
instructions,  President  Taylor  sent  a  message  communicating  all  the 
documents  relating  to  this  agency,  and  avowing  it  to  have  been  his  in- 
tention to  have  acknowledged  the  independence  of  Hungary  if  she  had 
succeeded  in  setting  up  such  a  government  as  is  usually  regarded  to 
be  a  government  de  facto.  This  i)roceeding,  when  it  became  publicly 
known,  was  considered  by  the  Austrian  government  as  offensive,  and 
its  representative  in  Washington,  Mr.  Hiilsemann,  complained  of  it  in 
an  ofl&cial  letter  addressed  to  Mr.  Clayton,  then  Secretary  of  State.  Mr, 
Clayton  answered  that  Mr.  Mann's  mission  had  no  other  object  than  to 
obtain  reliable  information  as  to  the  true  state  of  Hungarian  affairs  by 
personal  observation.  Instructions  from  the  Austrian  government  to 
Mr.  Hiilsemann  directing  his  reply  to  Mr.  Clayton,  reached  Washing- 
ton at  about  the  time  of  President  Taylor's  death  ;  and  when  the  new 
administration  of  President  Fillmore  was  completely  organized,  viz.,  on 
the  30th  of  September,  1850,  this  reply  was  addressed  by  Mr.  Hiilse- 
mann to  Mr.  Webstei;,  The  duty  was  thus  devolved  upon  Mr.  Webster 
of  vindicating  a  measure  for  which  he  and  President  Fillmore  were  in 
no  way  responsible.  But  Mr.  Webster  had  never  admitted  the  propri- 
ety of  any  discrimination  in  conducting  the  foreign  relations  of  the 
country,  between  the  acts  of  different  administrations,  and,  as  the  tone 
of  Mr.  Hiilsemann's  letter  to  him  was  far  from  being  courteous  or  just 
toward  the  Government  of  the  United  States,  he  thought  proper  to 

199 


§  47a.]  INTERVENTION.  [CHAP.  III. 

{jive  it  an  answer  of  a  very  firm  character,  that  shonkl  thoroughly  vin- 
dicate the  right  of  this  country  to  do  what  had  been  done  or  proposed 
in  tlie  case  of  Hungary.  *  *  »  The  celebrated  dispatch,  which  is 
commonly  known  as  'the  lliilsemanu  letter,'  was  not  finished  and  sent 
to  Mr.  Iliilsemann  by  Mr.  Webster  until  the  21st  of  December.    *  *    * 

"As  the  authorship  of  this  remarkable  i)aper  has  sometimes  been 
imputed  to  another  person,  it  may  be  proper  to  give  the  facts 
respecting  its  prei)aration,  though  they  involve  nothing  more  important 
than  a  question  of  literary  interest.  Mr.  Webster,  as  has  been  stated, 
arrived  at  ]\Iarshfield  on  the  9th  of  October,  1850,  where  he  remained  for 
the  space  of  two  weeks.  He  brought  with  him  the  papers  relating  to 
this  controversy  with  Austria.  Before  he  left  Washington,  he  gave  to 
Mr.  Hunter,  a  gentleman  then  and  still  filling  an  important  post  in  the 
Department  of  State,  verbal  instructions  concerning  some  of  the  points 
which  would  be  required  to  be  touched  on  in  ananswertoMr.Hiilsemann's 
letter  of  September  .30th,  and  requested  Mr.  Hunter  to  prepare  a  draft 
of  such  an  answer.  This  was  done,  and  Mr.  Hunter's  draft  of  an  answer 
was  forwarded  to  Mr.  Webster  at  Marshfield.  On  the  20th  of  October, 
Mr.  Webster,  being  far  from  well,  addressed  a  note  to  Mr.  Everett,  re- 
questing him  also  to  prepare  a  draft  of  a  reply  to  Mr.  Hiilsemanu,  at 
the  same  time  sending  to  Mr.  Everett  a  copy  of  Mr.  Hiilsemann's  letter 
and  of  President  Taylor's  message  to  the  Senate  relating  to  Mr.  Mann's 
mission  to  Hungary.  On  the  21st.  Mr.  Webster  went  to  his  farm  in 
Franklin,  New  Hampshire,  where  he  remained  until  the  4th  of  Novem- 
ber. While  there,  he  received  from  Mr.  Everett  a  draft  of  an  answer 
to  Mr.  Hiilsemann,  which  was  written  by  Mr.  Everett  between  the  21st 
and  24th  of  October.    »     »     * 

"The  facts  are  that  while  at  Franklin,  Mr.  Webster,  with  Mr.  Hunt- 
er's and  Mr.  Everett's  drafts  both  before  him,  went  over  the  whole 
subject,  making  considerable  changes  in  Mr.  Everett's  draft,  striking 
out  entire  ])aragraphs  with  his  pen,  altering  some  phrases,  and  writing 
new  paragraphs  of  his.  own,  but  adopting  Mr.  Everett's  draft  as  the 
basis  of  the  ofUcial  paper,  a  purpose  which  he  expressed  to  Mr.  Everett 
on  his  return  to  Boston  toward  Washington.  Subsequently,  when  he 
had  arrived  in  Washington,  Mr.  Webster  caused  a  third  draft  to  be 
made  in  the  State  Department  from  Mr.  Everett's  paper  and  his  own 
additions  and  alterations.  On  this  third  draft  he  made  still  other 
changes  and  additions,  and  when  the  whole  was  completed  to  his  own 
satisjaction,  the  official  letter  was  drawn  out  by  a  clerk,  was  submitted 
to  the  President,  and,  being  signed  by  Mr.  Webster,  was  sent  to  Mr. 
HtLlsemann." 

(3)  Sympathy  with  liberal  political  struggles. 

§  47a. 

"Born,  sir,  in  aland  of  liberty;  having  early  learned  its  value;  having 
engaged  in  a  perilous  conflict  to  defend  it;  havipg,  in  a  word,  devoted 
the  best  years  of  my  life  to  secure  its  permanent  establishment  in  my 
own  country,  my  anxious  recollections,  my  sympathetic  feelings,  and 
my  best  wishes  are  irresistibly  excited,  whensoever,  in  any  country,  I 
see  an  oppressed  nation  unfurl  the  banners  of  freedom.  But,  above  all, 
the  events  of  the  French  revolution  have  produced  the  deepest  solici- 
200 


CHAP.  III.]  SYMPATHY    WITH    LIBERALISM.  [§  47a. 

tilde,  as  well  as  the  highest  admiration.  To  call  your  natiou  brave, 
were  to  pronounce  but  common  praise.  Wonderful  peo})le!  Ages  to 
come  will  read  with  astonishment  the  history  of  your  brilliant  exploits! 
I  rejoice  that  the  period  of  your  toils  and  of  your  immense  sacri- 
fices is  approaching.  I  rejoice  that  the  interesting  revolutionary  move- 
ments of  so  many  years  have  issued  in  the  lormation  of  a  constitution 
designed  to  give  permanency  to  the  great  object  for  which  you  have 
contended.  I  rejoice  that  liberty,  which  you  have  so  long  embraced 
with  enthusiasm ;  liberty,  of  which  you  have  been  the  invincible 
offenders,  now  finds  an  asylum  in  the  bosom  of  a  regularly  organized 
Government;  a  Government  which,  being  formed  to  secure  the  happi- 
ness of  the  French  people,  corresponds  with  the  ardent  wishes  of  my 
heart,  while  it  gratifies  the  pride  of  every  citizen  of  the  United  States, 
by  its  resemblance  to  their  own.  On  these  glorious  events,  accept,  sir, 
my  sincere  congratulations. 

"  In  delivering  to  you  these  sentiments,  I  express  not  my  own  feelings 
only,  but  those  of  my  fellow-citizens,  in  relation  to  the  commencement, 
the  progress,  and  the  issue  of  the  French  rcAolution ;  and  they  will 
cordially  join  with  me  in  purest  wishes  to  the  Supreme  Being,  that  the 
citizens  of  our  sister  Re|)ublic,  our  magnanimous  allies,  may  soon  enjoy 
in  peace  that  lib.erty  which  they  have  purchased  at  so  great  a  price, 
and  all  the  hapi^iness  which  liberty  can  bestow. 

"  I  receive,  sir,  with  lively  sensibility,  the  symbol  of  the  triumphs 
and  of  the  enfranchisement  of  your  nation,  the  colors  of  France,  which 
you  have  now  presented  to  the  United  States.  The  transaction  will  be 
announced  to  Congress,  and  the  colors  will  be  deposited  with  those 
archives  of  the  United  States  which  are  at  once  the  evidences  and  the 
memorials  of  their  freedom  and  independence.  May  these  be  perpet- 
ual !  and  may  the  friendship  of  the  two  republics  be  commensurate  with 
their  existence." 

Answer  of  President  Washington  to  the  address  of  the  French  minister,  Mr. 
Adet,  on  his  presenting  the  colors  of  France  to  tlie  United  States,  January 
1,  1796.  (2  Wait's  State  Papers,  99.) 

For  papers  as  to  intervention,  in  1823-'24,  on  behalf  of  the  Greeks  in  their  up- 
rising against  Turkey,  see  House  Doc.  No.  36:i-,  18th  Cong.,  Ist  sess. ;  5 
Am.  State  Papers  (For.  Rel.),  251,252. 

For  the  attitude  of  this  Government  in  reference  to  Genet  and  his  appeals  for 
support,  see  infra,  §§  84,  106. 

As  to  question  of  recognizing  foreign  revolutions,  see  infra,  ^^  69,70. 

As  to  expression  of  opinion  in  reference  to  foreign  liberal  movements,  see  infra 
§§  56,389. 

"The  war  of  the  Greeks  for  independence  early  attracted  attention  in 
this  country.  Mr.  Dwight,  of  Massachusetts,  on  the  24th  of  December, 
1822,  presented  to  the  House  a  memorial  in  their  favor.  The  senti- 
ment of  the  House  was  against  meddling  with  the  subject,  and  the  me- 
morial was  ordered  to  lie  on  the  table. 

"  Early  in  the  next  session  (December  8,  1823),  Mr.  Webster  submit- 
ted to  the  House  a  resolution  that  provision  ought  to  be  made  by  law 

201 


§  47a.]  INTERVENTION.  [CHAP.  III. 

for  defriiying  the  expense  incideut  to  the  appointment  of  an  agent  or 
noimnissioiK^r  to  Greece,  whenever  the  President  shall  deem  it  expedient 
to  make  sncJi  ai)pointment.  On  the  19th  of  the  same  month  the  House 
requested  the.  President  to  lay  before  it  any  information  he  might  have 
received,  aud  which  he  might  deem  it  improper  to  communicate,  re- 
specting the  condition  and  future  prospects  of  the  Greeks. 

"(hi  the  2!>th  a  memorial  was  pres<'nted  from  citizens  of  New  York, 
re(] nesting  the  recognition  of  the  independence  of  Greece.  On  the  31st 
the  President  transmitted  the  desired  information  to  Congress.  On 
the  2d  of  January,  1824,  Mr.  Poinsett  laid  before  the  House  a  resolution 
of  the  general  assembly  of  South  Carolina  that  that  State  would  hail 
with  pleasure  the  recognition  by  the  American  Government  of  the 
independence  of  Greece.  On  the  5th  Webster  presented  a  memorial 
from  citizens  ot  Boston.  The  debate  upon  Webster's  resolution  began 
upon  the  19th  of  January  and  continued  until  the  26th.  It  took  a 
wide  range,  developed  great  diversity  of  sentiment,  and  produced  no 
result. 

''  The  sympathy  for  the  Greeks  continued  to  manifest  itself.  On  the 
2d  of  January,  1827,  Edward  Livingston  moved  to  instruct  the  Com- 
mittee of  Ways  and  Means  to  report  a  bill  appropriating  $50,000  for 
provisions  for  their  relief.  The  bill  was  negatived  on  the  27th.  Pri- 
vate relief  was  given,  and  in  his  annual  message  to  Congress  in  the  fol- 
lowing December  the  President  transmitted  to  Congress  correspond- 
ence respecting  it  with  Capo  d'Istrias  and  'with  the  president  and 
secretary  of  the  creek  national  assembly. 

"  The  first  and  only  treaty  with  Greece  was  concluded  in  London  in 
1837  between  the  ministers  of  the  respective  powers  at  that  court.  It 
was  sent  to  Congress  with  the  President's  message  of  December  4, 1838.'> 

Mr.  J.  C.  B.  Davis,  Notes,  etc. 

The  "  sympathy"  expressed  in  the  United  States  for  the  Greek  insur- 
rection against  Turkey  never  took  the  shape  of  intervention.  Of  the 
intervention  of  Great  Britain,  France,  and  Russia  in  that  struggle,  Mr. 
Abdy,  in  his  edition  of  Kent  (1878,  p.  50),  thus  speaks:  "  The  interven- 
tion was  based  on  three  grounds— first,  in  order  to  comply  with  the 
request  of  one  of  the  parties;  secondly,  on  the  ground  of  humanity  in 
order  to  stay  the  eflusion  of  blood;  and,  thirdly,  in  order  to  put  a  stop 
to  piracy  and  anarchy.  If  the  recognition  of  the  Greek  insurgents  and 
the  intervention  in  their  favor  are  to  be  looked  upon  as  precedents,  it 
IS  fitting  that  all  the  facts  connected  with  them  should  be  investigated, 
all  the  documents  examined,  an<l  a  careful  distinction  made  between 
the  ])olicy  and  the  legality  of  what  was  done.  And  then,  in  spite  of 
tlie  vigorous  defense  of  the  British  minister  of  the  day,  it  is  difficult  to 
withhold  our  assent  from  the  judgment  passed  bv  an  able  writer  of  our 
own  time  (Sir  W.  Harcourt,  in  '  Historicus')  upon  the  event,  when  he 
says  tliat  'the  emancipation  of  Greece  was  a  high  act  of  policy  above 
an(  beyond  the  domain  of  law.  As  an  act  of  policv  it  may  have  been 
aiK  was  .lustihable;  but  it  was  not  the  less  a  hostile  act,  which,  if  she 
had  dared,  Turkey  might  properly  have  resented  by  war.'" 

It  IS  not  ])ermissible  for  one  sovereign  to  address  another  sovereign 
on  political  questions  pending  in  the  latter's  domains  unless  invited  so 
to  do. 

Infra,  $$  7b,  79. 
202 


CHAP.  III.]  HOSPITALITY    TO    KEFUGEES.  [§48. 

The  Presideut  will  not  receive  officially,  unless  tlirougb  the  diplo- 
matic i'oi)re.sentatives  of  their  country,  foreigners  claiming  to  speak 
for  political  interests  in  their  own  land. 

Infra,  §  91. 

As  to  denioustrations  of  sympathy  with  foreign  belligerents  or  insurgents,  see 

injra,  %  389. 
As  to  sympathy  with  Hungarian  insurrection  in  ISiVi,  see  supra,  §  47  ;  infra,  ^  48. 

(4)  Hospitality  to  political  refugees. 

§  48. 

"  Ton  are  well  aware  that  the  deepest  interest  is  felt,  among  the  people 
of  the  United  Stales,  in  the  fate  of  Kossuth  and  his  compatriots  of 
Hungary,  who  have  hitherto  escaped  the  vengeance  of  Austria  and 
Russia  by  seeking  an  asylum  within  the  boundaries  of  the  Ottoman 
Empire.  The  accoun  ts  respecting  them  have  been  so  conflicting — some- 
times representing  them  as  having  escaped,  and  at  others  as  being 
captive — that  we  have  not  known  what  to  credit,  and  have,  therefore, 
declined  to  interlere  in  their  behalf;  nor  do  we  now  desire  to  interfere 
by  entangling  ourselves  in  any  serious  controversy  with  Eussia  or 
Austria.  But  we  cannot  supi)ose  that  a  compliance  with  the  dictates 
of  humanity,  now  that  the  contest  with  Hungary  is  over,  would  involve 
our  friendly  relations  with  any  other  power.  Should  you  be  of  the  opin- 
ion that  our  good  offices  would  avail  anytliing  to  secure  their  sai'ety  and 
their  escape  from  the  hands  of  those  who  still  pursue  them,  it  is  desired 
by  your  Government  that  you  should  intercede  with  the  Sultan  in  their 
behalf.  The  President  would  be  gratified  if  they  could  find  a  retreat 
under  the  American  flag,  and  their  safe  conveyance  to  this  countrj-,  by 
any  one  of  our  national  ships  w^hich  may  be  about  to  return  home, 
would  be  hailed  with  lively  satisfaction  by  the  American  people." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Marsh,  Jan.  12,  1850.     MSS.  Inst.,  Turkey. 

"  By  a  dispatch  of  my  predecessor,  you  were  instructed  to  ofier  to 
the  Sublime  Porte  to  receive  Mr.  Kossuth  and  his  companions  on  board 
of  one  of  the  national  ships  of  the  United  States,  to  convey  them  to  this 
country. 

"  It  would  be  extremely  gratifying  to  the  Government  and  people  of 
the  United  States  if  this  i^roposition  could  have  been,  at  that  time, 
accei)ted;  but  it  is  understood  that  it's  not  having  been  complied  with, 
by  the  Sublime  Port  did  not  arise  from  a  wish,  on  His  Imperial  Maj- 
esty's part,  to  detain  them,  or  from  any  unwillingness  that  they  should 
proceed  to  the  United  States,  but  w^as  in  consequence  of  the  Sultan's 
offer  to  Austria,  to  detain  these  persons  for  one  year,  at  the  expiration 
of  which  time,  unless  further  conventions  should  be  entered  into  to  pro- 
long their  detention,  they  should  be  at  liberty  to  depart. 

•'  If  this  be  so,  the  time  is  near  at  hand  when  their  release  may  be 
expected,  and  when  they  may  be  permitted  to  seek  an  asylum  in  any 

203 


^  48.]  INTERVENTION.  [CHAP,  III. 

part  of  the  woiM  to  wiiicb  tbey  yliall  be  able  to  procure  tlie  meaus  of 
transport  a  lion. 

•'It  is  conlideiitKy  hn\n'd  that  the  Sublime  Porte  Las  not  made,  and 
will  not  make,  any  new  stipulation,  with  any  power,  for  their  further 
detention;  and  you  are  directed  to  address  yourself  urgently,  though 
respectfully,  to  the  Sublime  Porte  on  this  question. 

"  You  will  cause  it  to  be  strongly  represented  that  while  this  Govern- 
ment has  no  desire  or  intention  to  interfere,  in  any  manner,  with  ques- 
tions of  public  policy,  or  international  or  municipal  relations  of  other 
governments,  not  afiecting  the  rights  of  its  own  citizens,  and  while  it 
has  entire  confidence  in  the  justice  and  magnanimity  and  dignity  of  the 
Sublime  Porte,  yet  on  a  matter  of  such  universal  interest,  it  hoi^es  that 
suggestions  proceeding  from  no  other  motives  than  those  of  friendship 
and  respect  for  the  Porte,  a  desire  for  the  continuance  and  perpetuity 
of  its  independence  and  dignified  position  among  the  nations  of  the 
earth,  and  a  sentiment  of  commiseration  for  the  Hungarian  exiles,  may 
be  received  by  the  Porte  in  the  same  friendly  spirit  in  which  they  are 
oflered,  and  that  the  growing  good  feeling  and  increasing  intercourse  be- 
tween the  two  Governments  may  be  still  further  fostered  and  extended, 
by  a  happy  concurrence  of  opinion  and  reciprocity  of  confidence  upon  this 
as  upon  all  other  subjects.  Compliance  with  the  wishes  of  the  Gov- 
ernment and  people  of  the  United  States  in  this  respect  will  be  regarded 
as  a  friendly  recognition  of  their  intercession,  and  as  a  proof  of  national 
good  will  and  regard. 

"  The  course  which  the  Sublime  Porte  pursued  in  refusing  to  allow 
the  Hungarian  exiles  to  be  seized  upon  its  soil  by  the  forces  of  a  for- 
eign state  or  to  arrest  and  deliver  them  up  itself  to  their  pursuers  was 
hailed  with  universal  approbation,  it  might  be  said  with  gratitude, 
everywhere  throughout  the  United  States,  and  this  sentiment  was  not 
the  less  strong  because  the  demand  upon  the  Sublime  Porte  was  made 
by  (Governments  confident  in  their  great  military  power,  with  armies  in 
the  field  of  vast  strength,  flushed  with  recent  victory,  and  whose  pur- 
poses were  not  to  be  thwarted  or  their  pursuit  stayed  by  any  obstacle 
less  than  the  interposition  of  an  empire  prepared  to  maintain  the  invi- 
olability of  its  territories  and  its  absolute  sovereignty  over  its  own  soil. 

"  This  Government,  jealous  of  its  own  territorial  rights,  regarded 
with  great  respect  and  hearty  approbation  the  firm  and  lofty  position 
assumed  by  His  Imperial  Majesty  at  that  time,  and  so  proudly  main- 
tained under  circumstances  well  calculated  to  inspire  doubt,  and  against 
demands  urged  with  such  gravity  and  supi)orted  by  so  formidable  an 
array.  His  Imperial  Majesty  felt  that  he  should  be  no  longer  an  inde- 
pendent prince  if  he  consented  to  be  anything  less  than  the  sovereign 
of  his  own  dominions. 

"  While  thus  regarding  the  political  position  and  conduct  of  the  Sub- 
lime Porte  in  reference  to  other  powers,  His  Majesty's  generosity  in  pro- 
viding for  the  wants  of  the  fugitives,  thus  unexpectedly  and  in  so  great 
-504 


CHAP.  III.]  HOSPITALITY    TO    REFUGEES.  [§  48. 

numbers  throwing  themselves  upon  his  protection,  is  considered  equally 
worthy  of  admiration. 

"  For  their  attempt  at  independence  they  have  most  dearly  paid,  and 
now,  broken  in  fortune  and  in  heart,  without  home  or  country,  a  band 
of  exiles,  whose  only  future  is  a  tearful  remembrance  of  the  past,  whose 
only  request  is  to  spend  the  remainder  of  their  days  in  obscure  industry, 
they  await  the  permission  of  llis  Imperial  Majesty  to  remove  them- 
selves, and  all  that  may  remain  to  them,  across  the  ocean  to  the  uncul- 
tivated regions  of  America,  and  leave  forever  a  continent  which  to  them 
has  become  more  gloomy  than  the  wilderness,  more  lone  and  dreary 
than  the  desert. 

' '  The  people  of  the  United  States  expect  from  the  generosity  of  the 
Turkish  monarch  that  this  permission  will  be  given.  They  wait  to  receive 
these  exiles  on  their  shores,  where,  without  giving  just  cause  of  uneasi- 
ness to  any  Government,  they  may  enjoy  whatever  of  consolation  can  be 
afforded  by  sympathy  for  their  sufferings  and  that  assistance  in  their 
necessities  which  this  people  have  never  been  late  in  offering  to  any, 
and  which  they  are  not  now  for  the  first  time  called  upon  to  render. 
Accustomed  themselves  to  high  ideas  of  national  independence,  the 
peo])le  of  the  United  States  would  regret  to  see  the  Government  of  the 
vast  empire  of  Turkey  constrained,  by  the  force  of  circumstances,  to 
exercise  the  duty  of  keeping  prisoners  for  other  powers. 

'•  You  will  further  say  to  the  Sublime  Porte  that  if,  as  this  Govern- 
ment hopes  and  believes,  Mr.  Kossuth  and  his  companions  are  allowed 
to  deijart  from  the  dominions  of  His  Imperial  Majesty  at  the  expiration 
of  the  year  commencing  in  ^'ay,  1850,  they  will  find  conveyance  to  the 
United  States  in  some  of  its  national  ships  now  in  the  Mediterranean 
Sea  which  can  be  spared  for  that  purpose,  and  you  will,  on  receiving 
assurances  that  these  persons  will  be  permitted  to  embark,  ascertain 
precisely  their  numbers,  and  immediately  give  notice  to  the  commander 
of  the  United  States  squadron  on  that  station,  who  will  receive  orders 
from  the  proper  authorities  to  be  present  with  such  of  the  ships  as  may 
be  necessary  or  can  leave  the  station  to  furnish  conveyance  for  Kossuth 
and  his  companions  to  the  United  States." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Marsh,  Feb.  28, 1851.     MSS.  Inst.,  Turkey. 

"  On  the  3d  of  INIaich  last  both  houses  of  Congress  passed  a  resolu- 
tion requesting  the  President  to  authorize  the  employment  of  a  public 
vessel  to  convey  to  this  country  Louis  Kossuth  and  his  associates  in 
captivity. 

"The  instruction  above  referred  to  was  complied  with,  {yid,  the  Turk- 
ish Government  having  released  Governor  Kossuth  and  his  compan- 
ions from  prison,  on  the  10th  of  September  last  they  embarked  on  board 
of  the  United  States  steam  frigate  Mississippi,  which  was  selected  to 
carry  into  effect  the  resolution  of  Congress.     Governor  Kossuth  left  the 

205 


^  48.]  INTERVENTION.  [CHAP,  III. 

Mississippi  at  Gibraltar  lor  the  purpose  of  making  a  visit  to  England,, 
and  may  sliortly  be  expected  in  New  York.  By  communications  to  the 
Department  of  State  he  has  expressed  bis  grateful  acknowledgments 
for  the  interposition  of  this  Government  in  behalf  of  himself  and  his 
associates.  This  country  has  been  justly  regarded  as  a  safe  asylum  for 
those  whom  political  events  have  exiled  from  their  own  homes  in 
Europe,  and  it  is  recommended  to  Congress  to  consider  in  what  manner 
Governor  Kossuth  and  his  companions,  brought  hither  by  its  authority, 
shall  be  received  and  treated." 

President  Fillmore's  Second  Annual  Message,  1851.    (Mr.  Webster,  Secretary  of 
State). 

As  to  Kossuth's  erratic  performances  on  the  Mississippi  steam  frig- 
ate, when  on  his  way  from  Smyrna  to  the  United  States,  see  House  Ex. 
Doc.  jS'o.  78,  32d  Cong.,  1st  sess.  It  appears  that  he  was  by  no  means 
a  tractable  guest,  and  that  at  every  port  at  which  the  Mississippi 
stopped  he  became  the  object  of  revolutionary  demonstrations,  said  to 
have  been  excited  by  himself.  This  was  particularly  the  case  at  Mar- 
seilles, where  Kossuth  left  the  steamer,  for  the  purpose,  as  he  alleged, 
of  going  direct  to  England,  to  rejoin  the  steamer  afterward  when  at 
Gibraltar.  At  Marseilles  he  was  the  center  of  great  commotion,  which, 
in  the  excitement  under  which  he  was  laboring,  he  fomented,  and  per- 
mission was  refused  him  to  pass  through  France.  He,  therefope,  after 
what  was  almost,  according  to  the  report  of  Mr.  Hodge,  consul  at  Mar- 
seilles, a  mob  valedictory  at  Marseilles,  returned  to  the  Mississippi. 

"It  was  on  the  last  day  of  the  year  that  a  formal  presentation  of  M. 
Kossuth  to  the  President  by  Mr.  Webster  took  place.  On  that  occasion 
the  reply  of  Mr.  Fillmore  to  M.  Kossuth's  address,  while  it  was  ex- 
tremely courteous  and  sympathetic,  was  yet  perfectly  explicit  in  declar- 
ing that  the  Government  could  lend  no  sanction  to  measures  whose 
design  was  to  foster  and  aid  a  revolutionary  movement  against  a 
friendly  power.  That  declaration  was  made  under  circumstances  which 
1  will  presently  describe,  and  which  were  well  calculated  to  render  M. 
Kossuth  uncomfortable,  and,  so  far  as  he  was  open  to  such  an  emotion, 
to  add  self  reproach  to  his  great  disappointment. 

"Accordingly,  ^I.  Kossuth  was  in  no  amiable  mood  during  his  visit 
to  Washington.  He  was  reserved  and  moody,  and  received  the  atten- 
tions that  were  lavished  upon  him  with  a  distrait  and  dissatisfied  air, 
and  with  a  scant  return  of  courtesy.  It  so  happened  that  I  chanced  to 
make  my  New  Year's  call  on  ^Nlr.  and  Mrs.  Webster  at  the  moment  that 
M.  Kossuth  and  his  i)arty  entered.  He  stood  apart  from  the  few  guests 
that  were  then  present,  and  his  whole  bearing  threw  a  chill  and  restraint 
over  the  circle.  I  remarked  to  Mrs.  Webster  that  her  illustrious  guest 
seemed  to  be  in  an  unsocial  mood,  and  she  replied  that  when  she  had 
attempted  to  open  conversation  with  him  by  remarking  upon  the  bright- 
ness of  the  day,  he  replied  that  he  took  no  interest  in  the  weather- 
that  his  mind  was  absorbed  in  i)ainful  thoughts  about  his  country— and 
the  conversation,  naturally  enough,  proceeded  no  further. 

"  I  think  it  was  on  the  following  day  that  the  President  gave  a  dinner 

to  :\I.  Kossuth,  to  which  General  Scott  and  the  Cabinet  and  a  few  other 

public  men,  and  to  which  also  I  and  my  wife  were  invited.    As  we  were 

about  to  proceed  to  the  reception-room  we  encountered  Mr,  and  Mrs, 

206 


CHAP.  III.]  HOSPITALITY    TO    REFUGEES.  [§  4<S. 

Webster,  iind  at  the  suggestion  of  the  latter  Mrs.  Webster  took  my  arm 
and  he  gav^e  his  own  to  my  wife.  As  we  were  about  to  move  in  this  or- 
der, a  servant  announced  that  M.  Kossuth  was  immediately  beliind  us, 
whereupon  Mr.  Webster  turned  to  welcome  him,  announcing  to  his  wife 
at  the  same  moment — against  her  remonstrances,  for  she  felt  that  he 
had  been  rude  to  her — that  we  must  change  '  vhe  order  of  our  going,' 
and  that  she  must  take  M.  Kossuth's  arm.  During  and  after  dinner  the 
bearing  of  the  guest,  in  behalf  of  whom  the  banquet  had  been  given, 
was  stately  and  constrained.  It  was  evident  that  he  felt  sore  and 
angry.  He  stood  apart  after  dinner,  in  a  manner  which  repelled  at- 
tempts to  enter  into  conversation  with  him.  His  whole  appearance, 
alike  by  his  picturesque  costume  and  his  attitude  and  expression,  sug- 
gested a  moody  Hamlet,  whom  neither  man  nor  woman  pleased.  After 
a  vain  attempt  to  engage  him  in  conversation  on  Hungarian  topics,  I 
asked  Mr.  Fillmore  what  had  happened  to  his  illustrious  guest  to  have 
thrown  him  into  such  an  evidently  ungenial  state  of  feeling.  He  said 
it  was  in  consequence  of  what  had  occurred  at  his  i)resentation.  Mr. 
Fillmore  told  me  that  there  had  been  an  explicit  understanding  with 
M.  Kossuth,  through  his  secretary,  that  there  was  to  be  no  allusion  in 
his  speech,  upon  being  presented,  to  the  subject  of  aid  or  intervention 
on  the  part  of  the  Government  of  the  United  States,  in  behalf  of  the 
party  in  Hungary  that  aimed  to  secure  its  independence  of  Austria,  and 
that  he  had  prepared  his  reply  on  the  assumption  that  such  would  be 
the  character  of  the  address.  His  surprise  was  therefore  great  when 
M.  Kossuth  in  his  address  invoked  that  aid,  and  expressed  the  hope 
that  it  would  be  given.  The  President  was  compelled,  on  the  spur  of 
the  moment,  to  omit  what  he  had  prepared  to  saj ,  and  to  declare  to 
him,  with  perfect  courtesy,  but  with  equal  explicitness,  that  nothing 
like  sanction,  much  less  material  aid,  for  the  cause  of  the  independence 
of  Hungary  could  be  given  by  the  Government  of  the  United  States. 
The  reply  was  admirable,  and  could  not  have  been  improved  had  Mr. 
Fillmore  anticipated  the  tenor  of  Kossuth's  address  and  prepared  his 
answer.  It  was  courteous,  yet  extremely  dignified  and  decided.  In- 
deed, it  may  be  regarded  as  fortunate  that  an  occasion  so  conspicuous 
occurred  for  proclaiming  at  home  and  to  foreign  states  that  the  policy 
of  the  Government  was  then,  as  it  had  always  been,  that  of  absolute 
non-intervention  in  the  affairs  of  European  nations. 

''Mr.  Webster,  who  presented  M.  Kossuth  to  the  President,  wrote  on 
the  same  day  to  a  friend  that  '  Mr.  Fillmore  received  him  with  great 
propriety,  and  his  address  was  all  right — sympathy,  personal  respect, 
and  kindness,  but  no  departure  from  our  established  policy.'  I  inferred 
from  Mr.  Fillmore's  animated  description  of  the  scene  that  he  regarded 
it  as  an  unfair  attempt  to  entrap  him  into  some  expression  or  some 
omission  which  might  seem  to  countenance  M.  Kossuth's  cherished  koi^e 
of  inducing  the  Government  to  give  both  its  moral  ajid  material  aid  to 
renew  the  struggle  for  Hungarian  inde])endence.  It  is  not  strange  that 
he  should  have  passionately  desired  such  a  result ;  but  it  was  a  singular 
delusion  to  sui)]»ose  it  possible  that  our  Government  would  enter  upon 
the  quixotic  career  of  making  the  United  States  the  armed  chami)ionof 
European  nationalities  struggling  lor  liberty  and  independence. 

"At  the  Congressional  dinner  given  to  M.  Kossuth  his  reception  was 
most  enthusiastic.  In  common  with  all  the  audience,  I  was  completely 
entranced  by  his  singularly  captivating  eloquence.  I  was  assigned  a 
seat  next  to  Mr.  Seward,  and  his  demonstrations  of  applause  by  hands 
and  feet  and  voice  were  excessive.     The  'Hungarian  Whirlwind'  car- 

m 


sS  48.]  INTERVENTION.  [CHAP.  III. 

tainly  carried  away  everything  on  that  occasion,  and  mingled  all  par- 
ties into  one  confused  mass  of  admirers  prostrate  at  Kossuth's  feet. 
The  sjioech  weemed  to  me  wanting  in  no  element  of  a  consummate  mas- 
teri)iece  of  eloquence.  The  orator's  picturesque  appearance,  his  archaic 
English  style,  his  vibrant  and  thrilling  voice,  aud  his  skillfully  selected 
and  arranged  topics,  all  concurred  in  the  production  of  an  effect  upon 
his  audience  such  as  1  have  never  seen  surpassed.  As  addressed  to 
American  statesmen,  it  exhibited,  what  was  very  rare  among  foreigners, 
a  ])erfect  understanding  of  our  Government,  as  the  union  of  separate 
states  with  their  autonomy  in  a  given  sphere,  under  a  general  consti- 
tution. His  eulogium  of  this  arrangement,  and  his  description  of  its 
aihiptation  and  its  probable  adoption  by  various  nationalities  in  Europe, 
was  very  skillful.  The  union  of  Germany  in  one  empire  may  be  re- 
garded by  some  as  the  first  step  toward  that  confederated  German 
rei)ublic  which  he  foretold. 

"  It  was  doubtful  up  to  the  last  moment  before  Mr.  Webster's  appear- 
ance whether  he  would  come  and  make  a  speech  on  that  occasion.  *  *  * 

"The  speech  which  Mr.  Webster  made,  as  we  now  read  it,  seems  very 
appropriate  to  the  occasion  and  to  his  own  position;  but  his  manner 
was  constrained,  and  after  the  high  pitch  of  enthusiasm  to  which  the 
audience  had  been  wrought  up,  it  fell  rather  heavily  upon  them,  and 
did  not  give  that  measure  of  encomium  of  M.  Kossuth  which  their  feel- 
ings at  the  moment  craved.  But  Mr.  Webster  spoke  to  an  audience, 
many  of  whom  were  bitter  political  foes  or  alienated  friends,  and  his 
recent  exi)erience  in  connection  with  M.  Kossuth,  while  it  had  not 
diminished  his  admiration  of  his  brilliant  ability,  had  convinced  him 
that,  though  matchless  as  an  orator,  he  was  no  statesman.  Moreover, 
his  position  as  Secretary  of  State  made  it  incumbent  upon  him  to  speak 
with  great  caution.  If  there  was  an  intention  on  the  part  of  Mr.  Seward 
to  entrap  j\Ir.  Webster  into  any  compromising  declarations  by  which 
his  influence  or  his  prospects  might  be  injured,  it  was  not  successful. 
The  speech  might  not  be  vehemently  admired;  it  could  not  justly  be 
condemned." 

Dr.  C.  M.  Butler's  reminiscences  of  Mr.  Webster. 

''The  progress  of  things  is  unquestionably  onward.  It  is  onward 
with  respect  to  Hungary;  it  is  onward  everywhere.  Public  opinion, 
in  my  estimation  at  least,  is  making  great  progress.  It  will  penetrate 
all  resources;  it  will  come  more  or  less  to  animate  all  minds;  and,  in 
respect  to  tlrat  country  for  which  our  sympathies  to-night  have  been  so 
strongly  invoked,  1  cannot  but  say  that  I  think  the  people  of  Hungary 
are  an  enlightened,  industrious,  sober,  well-inclined  community,  aud  I 
wish  (»nly  to  add  that  T  do  not  now  enter  into  anv  discussion  of  the 
form  of  government  that  may  be  proper  for  Hungary.  Of  course,  all 
of  you,  like  myself,  would  be  glad  to  see  her,  when  she  becomes  inde- 
I)end<'nt,  embrace  that  system  of  government  which  is  most  acceptable 
to  ourselves.  We  shall  rejoice  to  see  our  x\merican  model  upon  the 
Lower  Dainibe  and  on  the  mountains  of  Hungary.  But  this  is  not  the 
first  step.  It  is  not  that  which  will  be  our  tirst  prayer  for  Hungary. 
That  first  i>rayer  shall  be  that  Hungary  may  become  independent  of  all 
foreign  powers;  that  her  destinies  may  be  intrusted  to  her  own  hands 
and  to  her  own  discretion.  I  do  not  profess  to  understand  the  social 
relations  and  connections  of  races  and  of  twentv  other  things  that  may 
aftect  the  public  institutions  of  Hungary.  All  1  say  is  that  Hungary 
can  regulate  these  matters  for  herself  infinitely  better  than  they  can  be 
208 


CHAP.  III.]  HOSPITALITY    TO    REFUGEES.  §  48. 

ie},'nlated  for  her  by  Austria;  and,  tlierefore,  I  limit  my  aspirations  for 
Llun;zary,  lor  the  present,  to  that  single  and  simple  ])()int — Hungarian 
in(k'pen<lence,  Hungarian  self-government,  Hungarian  control  of  Hun- 
l>arian  destinies." 

Mr.  Webster's  Speech  at  Kossuth  Banqiiet,  Jan.  7,  1852;  2  Curtis'sLife  of  Web- 
ster, p.  578. 

"After  the  disastrous  termination  of  the  Hungarian  campaign,  1849, 
Kossuth,  with  four  thousand  of  his  comi)anions,  Poles  and  Hungarians, 
iled  from  Hungary-,  and  found  safety  at  Choumla,  in  the  dominions  of  the 
Sultan  of  Turkey.  Others,  who  had  taken  refuge  at  Widdin,  in  Bul- 
garia, confiding  in  the  amnesty  offered  them  by  the  Austrian  general 
sent  there  for  that  x>urpose,  returned  into  Hungary  only  to  meet  with 
death  in  the  most  ignominious  form. 

"The  exciting  struggle  between  Hungary  and  Austria  had  been 
-watched  with  close  attention  by  the  people  of  this  country,  and  the 
Government  had  manifested  its  interest  through  the  attempt  on  the 
])art  of  the  charge  d'affaires  of  the  United  States,  kt  Vienna,  in  1848, 
'to  open  the  door  of  reconciliation  between  the  opposing  parties,'  which 
course  received,  as  was  stated  by  Mr.  Buchanan,  then  Secretary  of 
State,  the  entire  approval  of  the  President.  Soon  after,  a  special  and 
-confidential  agent  was  authorized  by  President  Taylor  to  obtain  minute 
and  reliable  information  in  regard  to  Hungary,  and  invested  with  full 
l)ower  to  conclude  and  sign  a  treaty  with  her  in  the  name  of  the  United 
States. 

"Public  meetings  were  held  to  give  expression  to  the  general  sym- 
pathy, and  it  was  officially  stated  by  this  Department,  that  this  Gov- 
ernment, in  the  event  of  the  recognition  of  her  independence,  would  be 
most  happy  to  enter  into  commercial  as  well  as  diplomatic  relations 
with  independent  Hungary. 

"And  when  the  conflict  was  finally  determined,  the  deepest  interest 
was  felt  among  the  people  of  the  United  States  in  the  fate  of  Kossuth 
and  his  compatriots  who  had  sought  an  asylum  within  the  boundaries 
of  the  Ottoman  Empire.  The  diplomatic  agent  of  the  United  States 
was  instructed  by  Mr.  Clayton,  in  January,  1850,  to  intercede  with  the 
Sultan  in  their  behalf,  and  it  was  suggested  that  the  President  would 
be  gratified  if  they  could  find  a  retreat  under  the  American  flag ;  and  it 
was  added  that  their  safe  conveyance  to  this  country  by  any  one  of  our 
national  ships  would  be  hailed  with  lively  satisfaction  by  the  AmericaM 
people.  Various  obstacles  interposed  to  prevent  the  immediate  fulfill- 
ment of  this  design.  Finally,  in  February,  1851 ,  Mr.  Webster,  by  direc- 
tion of  the  President,  instructed  Mr.  Marsh  to  assure  the  Sultan  that  if 
Kossuth  and  his  companions  were  allowed  to  depart  from  the  dominions 
of  His  Imperial  Majesty  at  the  expiration  of  the  year  commencing  in 
May,  1850,  for  which  period  he  had  promised  the  Austrian  Government 
to  detain  them,  that  they  would  find  conveyance  to  the  United  States 
in  some  of  its  national  ships  then  in  the  IVIediterranean  Sea.  In  Sep- 
S.  Mis.  162— VOL.  I 14  209 


^S  49.]  INTERVENTION.  [CHAP.  III. 

teiiibor  of  tbe  same  year,  Kossuth,  aud  so  mauy  of  bis  compauious  as 
could  coiivcuieutly  be  received  on  board  the  United  States  steamship 
Mississip])!,  embarke<l  for  the  United  States.  The  original  number  of 
the  refugees  was  much  diminished  during  their  stay  in  Turkey;  a  large 
number  escaped  through  the  connivance  of  the  Turkish  authorities,  and 
made  their  way  by  means  of  passports  or  official  certificates,  given  by 
the  United  States  agents,  to  different  parts  of  Europe,  and  even  to  the 
United  States,  some  returned  to  Hungary,  and  many  arrived  in  Con- 
stantinople. *  *  *  Their  necessities  compelled  the  legation  and  the 
consulate  of  the  United  States — the  latter  then  and  for  a  considerable 
period  previously  in  charge  of  the  memorialist — to  contribute,  as  it  is 
alleged  by  both,  to  their  relief  to  an  extent  which,  as  stated  by  Mr. 
Marsh,  was  a  serious  embarrassment  to  him.  He  was  aware  that  he 
♦  ould  not  lawfully  claim  any  allowance  for  this  expenditure  in  his  ac- 
count with  the  contingent  fund,  but  the  action  of  the  Government  and 
the  expression  of  public  sympathy  in  America  had  put  him  in  aposition 
which  absolutely  compelled  him  to  go  much  beyond  his  means  in  sup- 
l>lying  the  wants  of  these  suffering  outcasts." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  Chairman  of  Committee  on  Foreign 
Relations,  U.  S.  Senate,  July  25, 1854.    MSS.  Report  Book. 

As  to  intervention  in  Koezta'.s  case,  see  infra  ^  198;  Sen.  Ex.  Doc.  No.  1,  33d 
Cong.,  iHt  sess. ;  Senate  Ex.  Doc.  No.  40, 53,  id. 

(5)  Mediation. 

§  49. 

President  J.  Q.  Adams's  message  of  May  21, 1828,  giving  correspond- 
ence in  reference  to  mediation  between  Spain  and  the  Spanish  American 
colonies,  is  contained  in  House  Doc.  Xo.  407,  20th  Cong.,  1st  sess.,  6 
Am.  State  Papers  (For.  Eel.),  1006. 


In  a  report  of  Mr.  Clay,  Secretary  of  State,  March  29, 1826,  addressed 
to  the  President,  and  by  him  sent  to  Congress,  it  is  stated  that  "the 


^.      reign 

]»()wers  with  the  independence  or  form  of  government  of  those  nations; 
nor  have  any  instructions  been  issued,  authorizing  any  such  engage- 
ment or  pledge.  It  will  be  seen  that  the  message  of'the  late  Presi- 
dent ot  the  United  States  of  the  2d  December,  1823,  is  adverted  to  in 
the  extracts  now  furnished  from  the  instructions  to  Mr.  Poinsett,  and 
that  he  IS  directed  to  imi)ress  its  principles  upon  the  Government  of  the 
united  Mexican  States. 

"All  api)rchensions  of  the  danger,  to  which  Mr.  Monroe  alludes,  of 
an  interterence  by  the  allied  powers  of  Europe,  to  intioduce  their  polit- 
ical .systems  into  this  hemisphere,  have  ceased.  If,  indeed,  an  attempt 
by  torce  ha<l  been  made,  by  allied  Europe,  to  subvert  the  liberties  of  the 
southern  nations  on  this  continent,  and  to  erect,  upon  the  ruins  of  their 
tree  institutions,  monarchical  systems,  the  people  of  the  United  States 
would  have  stood  pledged,  in  the  opinion  of  their  Executive,  not  toauv 
loreign  state,  but  to  themselves  and  to  their  posterity,  by  their  dearest 
210 


CHAP.  III.]  MEDIATION.  §  49. 

interests  and  highest  duties,  to  resist  to  the  utmost  such  attempt;  and 
it  is  to  a  pledge  of  that  character  that  Mr.  Poinsett  alone  refers." 

See  British  and  Foreign  State  Papers  (1825-'G),  Vol.  1:5,  p.  484. 

"  On  the  part  of  France  the  mediation  (that  of  Great  Britain  in  1835, 
as  to  the  non-performance  of  the  French  spoliation  treaty)  was  publicly 
accepted  before  the  offer  of  it  could  be  received  here.  Whilst  each  of 
the  two  Governments  has  thus  discovered  a  just  solicitude  to  resort  to 
all  honorable  means  of  adjusting  amicably  the  controversy  between 
them,  it  is  a  matter  of  congratulation  that  the  mediation  has  been  ren- 
dered unnecessary.  Under  such  circumstances  the  anticipation  may  be 
confidently  indulged,  that  the  disagreement  between  the  United  States 
and  France  will  not  have  produced  more  than  a  temporary  estrange- 
ment. *  *  *  Of  the  elevated  and  disinterested  part  the  Government 
of  Great  Britain  has  acted,  and  was  prepared  to  act,  I  have  already  had 
occasion  to  express  my  high  sense." 

President  Jackson's  Message  of  Feb.  23,  1836.  See  infra,  §  318. 
The  papers  relative  to  British  mediation  for  the  settlement  of  differences  be- 
tween France  and  the  United  States,  respecting  the  convention  of  claims  of 
1831,  will  be  found  in  the  British  and  Foreign  State  Papers  for  1835-'6,  Vol. 
24,  1104,  1155,  1156.  See  also  same  work  for  1833-'4,  Vol.  22,  595,  964.  See 
further  as  to  the  controversy  as  to  these  claims  between  France  and  the 
United  States,  infra  H  148,  228,  316,  318. 

"  It  has  never  been  the  purpose  of  the  Government  of  the  United 
States  to  interpose,  directly  or  indirectly,  in  the  afliairs  of  the  states  of 
Central  America,  with  a  view  to  settle  the  controversies  between  them 
by  any  influence  whatsoever  exercised  by  this  Government,  without  their 
request  or  free  consent.  The  mediation  and  friendly  ofltices  of  this  Gov- 
ernment have  been  solicited,  and  this  request  has  been  complied  with 
and  nothing  more.  Not  a  step  has  been  taken  to  coerce  either  of  those 
Governments  into  any  measure  not  satisfactory  to  itself.  These  Eepub- 
lics  are  small,  and  in  a  great  degree  powerless,  but  we  respect  the  na- 
tional character  and  independence  of  each.  And  although  it  is  to  be 
deeply  regretted  that,  for  national  purposes,  they  are  not  united  in  some 
form  of  confederacy,  yet,  whilst  things  remain  as  they  now  are,  we  are 
to  treat  with  each  of  them  as  a  separate  and  independent  state." 

Mr.  Webster,  Sec.  of  State,  to  the  President,  Aug.  12, 1852.     MSS.  Report  Book. 

"  Our  minister  to  China,  in  obedience  to  his  instructions,  has  remained 
perfectly  neutral  in  the  war  between  Great  Britain  and  France  and  the 
Chinese  Empire,  although  in  conjunction  with  the  Russian  minister,  he 
was  ever  ready  and  willing,  had  tlie  opi)ortunity  oftered,  to  employ  his 
good  offices  in  restoring  peace  between  the  parties.  It  is  but  an  act  of 
simple  justice,  both  to  our  present  minister  and  his  predecessor,  to  state 
that  they  have  proved  fully  equal  to  the  delicate,  trying,  and  responsi- 
ble positions  in  which  they  have  on  different  occasions  been  placed." 
President  Buchanan's  Fourth  Aunual  Message,  1860. 

211 


^^  49  ]  INTERVENTION.  [CHAP.  III. 

''  In  18o;>  this  Government,  together  with  those  of  Great  Britain  and 
France,  through  their  diplomatic  representatives,  concluded  important 
treaties  of  Irieiidship,  commerce,  and  free  fluvial  navigation  with  thede 
/actoGovernmentof  the  Argentine  Confederation.  Those  treaties  opened 
to  all  the  riparian  states  the  commercial  opportunities  and  advantages 
which,  hitherto,  hnd  been  exclusively  controlled  and  enjoyed  by  Buenos 
Ayres.  Dissatisfied  with  a  policy  which  removed  the  barriers  she  had 
set  up  to  confine  trade  to  her  own  capital,  and  blind  to  the  fact  that, 
seated  as  she  was  at  the  common  door  through  which  alike  must  pass 
the  trade  and  travel  to  and  from  the  regions  of  the  Salado,  the  Para- 
guay, and  the  Uruguay,  every  vessel  which  sailed  up  and  down  those 
rivers  would  i)our  tribute  into  her  lap,  she  formally  protested  against 
the  execution  of  the  treaties  of  commerce  and  free  navigation,  and  with- 
drew from  the  sisterhood  of  which  she  was  naturally  and  politically  a 
member. 

"  Under  these  circumstances  there  was  but  one  consistent  course  to 
be  pursued  by  those  Governments  which  had  entered  into  treaty  stipu- 
lations with  the  confederation.  That  was  to  discountenance  the  selfish 
and  illiberal  policy  of  Buenos  Ayres,  and  to  bestow  the  moral  weight  and 
influence  of  diplomatic  relations  ujjon  the  Government  which  had  been 
prompt  to  recognize  the  liberal  commercial  principles  of  the  age." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Lamar,  Oct.  23,  1857.     MSS.  Inst  ,  Arg.  Rep. 

"  The  United  States  stand  as  the  great  American  power  to  which,  as 
their  natural  ally  and  friend,  they  (the  South  America  nations)  will 
always  be  disposed  first  to  look  for  mediation  and  assistance,  in  the 
event  of  any  collision  between  them  and  any  European  nation.  As 
Huch  we  may  often  kindly  mediate  in  their  behalf  without  entangling 
ourselves  in  foreign  wars  or  unnecessary  controversies.  Whenever  the 
faith  of  our  treaties  with  any  of  them  shall  require  our  interference,  we 
must  necessarily  interpose." 

PresideDt  Taylor's  First  Annual  Message,  1849. 

"  The  fact  that  the  national  attachment  of  this  country  to  France  is 
so  pure  and  so  elevated,  constitutes  just  the  reason  why  it  could  be 
more  easily  supplanted  by  national  insult  or  injustice  than  our  attach- 
ment to  any  other  foreign  state  could  be.  It  is  a  chivalrous  sentiment, 
and  it  must  be  preserved  by  chivalrous  conduct  and  bearing  on  both 
sides.  I  deduce  from  the  two  positions  which  I  have  presented  a  con- 
clusion which  has  the  most  solemn  interest  for  both  parties,  namely, 
that  any  attempt  at  dictation— much  more  any  aggression  committed 
by  the  Government  of  France  against  the  United  States— would  more 
certainly  and  eftectivcly  rouse  the  American  people  to  an  attitude  of 
determined  resistance  than  a  similar  afiront  or  injury  committed  by  any 
other  power.  There  is  reason  to  believe  that  interested  sympathizers 
with  the  insurrection  in  this  country  have  reported  to  the  French  Gov- 
ernment that  it  would  find  a  party  here  disposed  to  accept  its  media- 
212 


CHAP.  III.]  MEDIATION.  [§  ■^^• 

tioa  or  interventiou.  I  uuderstantl  that  they  reckon  upon  a  suj)posed 
s.yujpatliy  between  our  democratic  citizens  and  the  French  Government, 
It  may  as  well  be  understood  as  soon  as  possible  that  we  have  no  dem- 
ocrats who  do  not  cherish  the  independence  of  our  country  as  the  first 
element  of  democratic  faith,  while,  on  the  other  hand,  it  is  partiality  for 
France  that  makes  us  willingly  shut  our  eyes  to  the  fact  that  that  great 
nation  is  only  advancing  towards,  instead  of  having  reached,  the  dem- 
ocratic condition  which  attracts  us  in  some  other  countries." 

Mr.  Seward,  Sec.  of  State,  to  Mr.   Dayton,  Dec.  29,  1862;  MSS.   Inst., France; 

Dip.  Corr.,  18G3. 
On  the  subject  of  foreign  mediation  in  the  late  civil  war,  see  Senate  Ex.  Doc 

No.  38,  39th   Cong.,  3d  Sess.  ;  Brit,  and  For.  State  Papers  for  1864-'.5,  vol. 

55 ;  3  Phill.  Int.  Law  (3d  ed.),  11. 

In  the  wars  between  Spain  and  certgjn  South  American  Eepublics 
in  1865-'6,  the  United  States  "  seeks  the  friendship  of  neither  at  the  cost 
of  unfairness  or  concealment  in  its«commuuicatious  to  the  other.  We 
have  tendered  our  good  ofilices  to  each.  They  have  not  been  accepted. 
We  have  concurred  in  a  suggestion  that  the  merits  of  these  unhappy 
contests  should  be  referred  to  the  Emperor  of  Russia.  We  are  quite 
willing  to  see  Great  Britain  and  France  undertake  the  task  of  media- 
tors. We  will  favor  that  or  other  mediations  the  parties  may  be  in- 
clined to  adopt.  We  seek  no  acknowledgments  or  concessions  from 
either  party  as  an  equivalent  for  impartiality  and  friendship." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Hale,  Oct.  27,  1866;  MSS.  Inst.,  Spain.  See 
same  to  same,  Dec.  20, 1866,  inclosing  mediating  action  of  House  of  Repre- 
sentatives, and  making  specific  proposals  of  mediation  ;  and  sec  also  same 
to  same,  Feb.  25,  1867,  Aug..27,  1868. 

Undue  diplomatic  pressure  upon  two  South  American  belligerents 
to  secure  their  acceptance  of  the  good  offices  of  the  United  States  as  a 
mediator  is  to  be  discountenanced. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Asboth,  Buenos  Ayres,  April  1,  1867 ;  MSS. 
Inst.,  Arg.  Rep. 

"  We  were  asked  by  the  new  Government  to  use  our  good  offices, 
jointly  with  those  of  European  powers,  in  the  interests  of  peace.  An- 
swer was  made  that  the  established  policy  and  the  true  interests  of 
the  United  States  forbade  them  to  interfere  in  European  questions 
jointly  with  European  powers.  1  ascertained,  informally  and  unoffi- 
cially, that  the  Government  of  North  Germany  was  not  then  disposed  to 
listen  to  such  represetitations  from  any  power,  and  though  earnestly 
wishing  to  see  the  blessings  of  peace  restored  to  the  belligerents,  with 
all  of  whom  the  United  States  are  on  terms  of  friendship,  I  declined,  on 
the  part  of  this  Government,  to  take  a  step  which  could  only  result  in 
injury  to  our  true  interests,  without  advancing  the  object  for  which  our 
intervention  was  invoked.  Should  the  time  come  when  the  action  of 
the  United  States  can  hasten  the  return  of  peace,  by  a  single  hour,  that 

213 


^S  4!).]  INTERVENTION.  [CHAP.  Ill 

action  will  be  heartily  takeu.  I  deemed  it  prudent,  iu  view  of  the  num- 
ber of  i)ers()ns  of  German  and  French  birth  living  in  the  United  States, 
to  issue,  soon  after  official  notice  of  a  state  of  war  had  been  received 
from  both  belligerents,  a  proclamation,  defining  the  duties  of  the  United 
States  as  a  neutral  and  the  obligations  of  persons  residing  within  their 
territory,  to  observe  their  laws  and  the  laws  of  nations.  This  procla- 
mation was  followed  by  others,  as  circumstances  seemed  to  call  for 
them.  The  people,  thus  acquainted,  in  advance  of  their  duties  and  ob- 
ligations, have  assisted  in  preventing  violations  of  the  neutrality  of  the 
United  States." 

President  Grant's  Second  Annual  Messajie,  1870.     See  infra,  §  105. 

,Ou  application  of  the  German  Government,  the  United  States  lega- 
tion in  China  was  instructed  in  1870  to  use  its  good  offices  to  aid  Ger- 
many in  securing  from  China  the  use  of  the  island  of  Kulangsen  as  a 
coaling  station,  not  seeking,  hovjpver,  to  acquire  the  sovereignty 
tliereof. 

Mr.  Fish.  Sec.  of  State,  to  Mr.  Low,  May  2G,  lb70 ;  MSS.  lust.,  Chin.i. 

"  Washburne  telegraphs  that  France  requests  United  States  to  join 
other  powers  in  effort  for  peace.  Uniform  j)olicy  and  true  interest  of 
United  States  not  to  join  European  powers  in  interference  in  European 
questions.  President  strongly  desires  to  see  war  arrested  and  bless- 
ings of  peace  restored.  If  Germany  also  desires  to  have  good  offices 
of  United  States  interposed,  President  will  be  glad  to  contribute  all 
aid  in  his  power  to  secure  restoration  of  peace  between  the  two  great 
j)0wer8  now  at  war,  and  with  whom  United  States  has  so  many  tradi- 
tions'of  friendship.  Ascertain  if  IsTorth  Germany  desires  such  offices, 
but  without  making  the  tender  thereof  unless  assured  they  will  be  ac- 
cepted." 

Mr.  Fish,  Sec.   of  State,  telegram  to  Mr.  Bancroft,  Sept.  9,  1870;  MSS.  Inst., 
Germ. ;  For.  Rel.,  1870. 

"  The  reasons  which  you  present  against  an  American  intervention 
between  France  and  Germany  are  substantially  among  the  considera- 
tions which  determined  the  President  in  the  course  and  policy  indicated 
to  you  in  the  cable  dispatches  from  this  office  on  the  9th  instant,  and  in 
rejecting  all  idea  of  mediation  unless  upon  the  joint  request  of  both  of 
the  warring  i)owers. 

"  It  continues  to  be  the  hope  of  the  President,  as  it  is  the  interest  of 
the  people  of  this  country,  that  the  unhap])y  war  in  which  France  and 
North  Germany  are  engaged  should  find  an  early  end. 

•'  This  (lovernment  will  not  express  any  opinion  as  to  the  terms  or 
conditions  upon  which  a  peace  may  or  should  be  established  between 
two  Governments  equally  sharing  its  friendship,  but  it  is  hoped  that  the 
l»rolongation  of  the  war  may  not  find  its  cause  either  in  extreme  demands 
on  the  one  side,  or  extreme  sensitiveness  on  the  other  side. 
214 


CHAP.  III.]  MEDIATION.  [§  49. 

,  "  So  far  as  you  can  consistently  and  witliout  my  official  interposition 
ol'  advice  or  of  counsel,  it  is  hoped  that  you  will  lose  no  proper  ojipor- 
tunity  to  indicate  the  wishes  and  hopes  of  the  President  and  of  the 
American  people  as  above  rei)resented,  and  to  contribute  what  you  may 
to  the  presentation  of  such  terms  of  peace  as  befit  the  greatness  and  the 
power  which  North  Germany  has  manifested,  and  as  shall  not  be  humil- 
iating or  derogatory  to  the  pride  of  the  great  people  who  were  our 
earliest  and  fast  ally." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  VVaHlibume,  Sept.  30,  1870  ;  MSS.  Inst.,  France  ; 
Foi-.  Rel.,1870. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  to  this 
Dei)artment,  dated  the  8th  instant,  in  which  you  refer  to  previous  cor- 
respondence in  reference  to  the  inquiry  you  made  in  June  last,  by  direc- 
tion of  the  Marquis  of  Salisbury,  as  to  whether  the  Government  of  the 
United  States  would  be  disposed  to  join  Great  Britain  and  Germany 
in  offering  their  mediation  with  a  view  of  concluding  the  war  between 
Chili  and  Peru.  You  also  mention  the  reply  of  this  Government  to 
that  ]>roposal,  expressing  its  readiness  to  assist  in  the  restoration  of 
peace  between  the  belligerents  whenever  its  good  oflBces  might  be  use- 
fully proffered,  but  not  favoring  a  premature  effort  nor  an  effort  in  com- 
bination with  other  neutral  powers  which  would  carry  the  impression 
of  dictation  or  coercion  in  disparagement  of  belligerent  rights. 

"  You  say,  furthermore,  that  you  have  recently  observed  statements 
in  American  newspapers  to  the  effect  that  this  Government  has  iu- 
structe<l  its  ministers  at  Lima  and  Santiago  de  Chili  to  tender  the  good 
offices  of  the  United  States  to  secure  an  honorable  settlement  of  the 
<lifficulties  between  the  belligerent  Governments,  whenever  they  shall 
intimate  that  such  friendly  services  will  be  accepted  with  that  end  in 
view,  and  j^ou  express  the  hope  that  I  will  think  myself  justified  in  ac- 
quainting you,  for  the  information  of  Her  Majesty's  Government,  as  to 
whether  the  newspaper  statements  to  which  you  refer  are  founded  on 
fact,  and  whether  the  hope  may  be  entertained  that  the  steps  thus  re- 
ported to  have  been  taken  by  the  Government  of  the  United  States 
may  lead  to  the  conclusion  of  peace  between  the  Republics  of  Chili  and 
Peru. 

"  In  reply,  I  have  to  say  that  I  have  delayed  answering  your  note 
above  mentioned,  which  was  brought  to  my  notice  on  my  return  to 
Washington,  on  the  16th  instant,  until  I  could  examine  the  correspond- 
ence with  the  several  ministers  at  Peru,  Chili,  and  Bolivia,  which  had 
taken  place  during  my  absence. 

"The  statements  in  the  newspapers  to  which  you  refer,  have  not  specif- 
ically attracted  my  attention.  I  am  able  to  say,  however,  that  our  min- 
isters have  given  and  are  giving  attention  to  the  wishes  of  this  Govern- 
ment to  proffer  its  good  offices  in  favor  of  peace  at  the  earliest  indication 
of  the  readiness  of  the  belligerents  to  consider  such  good  offices  accept- 
able. 

215 


^S  49.]  INTERVENTION.  [CHAP.  III. 

''This  purpose  this  Government  will  not  fail  to  pursue,  and  with 
good  hopes  that  the  events  of  the  war  may  soon  dispose  all  the  bellig- 
erents to  desire  its  honorable  conclusion.  It  would  be  premature  to 
anticipate  an  immediate  opportunity  for  a  defiuite  proposal  of  peaceful 
methods  tlirough  the  good  offices  of  this  Government  which  would  gain 
the  concurrent  consent  of  the  three  belligerents. 

"  It  will  give  me  pleasure  early  to  acquaint  you,  for  the  information 
of  your  Government,  with  any  decisive  indications  of  a  disposition  to 
make  a  peaceful  solution  of  the  unhappy  controversy  through  the  in- 
i^erposed  friendship  of  this  Government." 

Mr.  Evarts,  Sec.  of  State,  to  Sir  E.  Thornton,  Sept.  24, 1879 ;  MSS.  Note,  Gr.  Brit. ; 
For.  Ki-1.,  1879. 

"  The  war  between  Peru,  Bolivia,  and  Chill  still  continues.  The 
United  States  have  not  deemed  it  proper  to  interpose  in  the  matter 
fnrtlier  than  to  convey  to  all  the  Governments  concerned  the  assurance 
tliat  the  friendly  offices  of  the  Government  of  the  United  States  for  the 
restoration  of  peace  upon  an  honorable  basis  will  be  extended,  in  case 
the  l)elligerents  shall  exhibit  a  readiness  to  accept  them." 
President  Hayes's  Thirrt  Annual  Message  1879. 

"The  war  between  the  Rci)ublic  of  Chili,  on  the  one  hand,  and  the 
allied  K('j)nblics  of  Peru  and  Bolivia  on  the  other,  still  continues.  This 
Government  has  not  felt  called  upon  to  interfere  in  a  contest  that  is  within 
the  belligerent  rights  of  the  parties  as  independent  states.  We  have, 
however,  always  held  ourselves  in  readiness  to  aid  in  accommodating 
their  diflference,  and  have  at  diflerent  times  reminded  both  belligerents 
of  our  willingness  to  render  such  service. 

"  Our  good  oflices,  in  this  direction,  were  recently  accepted  by  all  the 
belligerents,  and  it  was  hoped  they  would  prove  efficacious ;  but  I  re- 
gret to  announce  that  the  measures  which  the  ministers  of  the  United 
States  at  Santiago  and  Lima  were  authorized  to  take,  with  the  view  to 
bring  about  a  peace,  were  not  successful.  In  the  course  of  the  war  some 
questions  have  arisen  affecting  neutral  rights ;  in  all  of  these  the  min- 
i.sters  of  the  Unitnd  States  have,  under  their  instructions,  acted  with 
l»romptness  and  energy  in  protection  of  American  interests." 
President  Hayes's  Fourth  Annual  Message  1880. 

"  For  some  years  past  a  growing  disposition  has  been  manifested  by 
certain  states  of  Central  and  South  America  to  refer  disputes  aff"ecting 
grave  questions  of  international  relationship  and  boundaries  to  arbitra- 
tion rather  than  to  the  sword.  It  has  been,  on  several  such  occasions^ 
a  source  of  profound  satisfaction  to  the  Government  of  the  United  States 
to  see  that  this  country  is,  in  a  large  measure,  looked  to  by  all  the 
American  i)owers  as  their  friend  and  mediator.  The  just  and  impartial 
counsel  of  the  President  in  such  cases  has  never  been  withheld,  and, 
216 


CHAP.  III.]  MEDIATION.  [§  49. 

liis  efforts  have  been  rewarded  by  the  prevention  of  sauguinarj-  strife  or 
angry  contentions  between  peoples  whom  we  regard  as  brethren." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Morgan,  Nov.  29,  1881  ;  MSS.  Inst.,  Mexico. 

"  Tlie  war  between  Peru  and  Bolivia,  on  the  one  side,  and  Chili  on 
tlje  other,  began  more  than  three  years  ago.  On  the  occupation  by 
Cliili  in  1880  of  all  the  littoral  territory  of  Bolivia,  negotiations  for  peace 
were  conducted  under  the  direction  of  the  United  States.  The  allies 
refused  to  concede  any  territory,  but  Chili  has  since  become  master  of 
the  whole  coast  of  both  countries  and  of  the  capital  of  Peru.  A  year 
since,  as  you  have  already  been  advised  by  correspondence  transmitted 
to  you  in  January  last,  this  Government  sent  a  special  mission  to  the 
belligerent  powers  to  express  the  hope  that  Chili  would  be  disposed  to 
accept  a  money  indemnity  for  the  expenses  of  the  war  and  to  relinquish 
her  demand  for  a  portion  of  the  territory  of  her  antagonist. 

"  This  recommendation,  which  Chili  declined  to  follow,  this  Govern- 
ment did  not  assume  to  enforce ;  nor  can  it  be  enforced  without  resort 
to  measures  which  would  be  in  keeping  neither  with  the  temper  of  our 
people  nor  with  the  spirit  of  our  institutions. 

"  The  power  of  Peru  no  longer  extends  over  its  whole  territory,  and, 
in  the  event  of  our  interference  to  dictate  peace,  would  need  to  be  sup- 
plemented by  the  armies  and  navies  of  the  United  States.  Such  inter- 
ference would  almost  inevitably  lead  to  the  establishment  of  a  protect- 
orate— a  result  utterly  at  odds  with  our  past  policy,  injurious  to  our 
present  interests,  and  full  of  embarrassments  for  the  future. 

"  For  effecting  the  termination  of  hostilities  upon  terms  at  onc<^  just 
to  the  victorious  nation  and  generous  to  its  adversaries,  this  Govern- 
ment has  spared  no  eftbrts  save  such  as  might  involve  the  complications 
which  I  have  indicated. 

"  It  is  greatly  to  be  deplored  that  Chili  seems  resolved  to  exact  such 
rigorous  conditions  of  peace,  and  indisposed  to  submit  to  arbitration 
the  terms  of  an  amicable  settlement.  No  peace  is  likely  to  be  lasting 
that  is  not  sufficiently  equitable  and  just  to  command  the  approval  of 
other  nations." 

Piesideut  Arthur's  Second  Annual  Message,  1882. 

"  The  traditional  attitude  of  the  United  States  towards  the  sister  Ee- 
publics  of  this  continent  is  one  of  peace  and  friendly  counsel. 

"  When  as  colonies  they  threw  off  their  political  connection  with  Eu- 
rope, we  encouraged  them  by  our  sympathies.  By  the  moral  weight  of 
our  official  declarations  we  prevented  intervention,  either  to  restore  old 
political  connections  with  Europe  or  to  create  new  ones.  The  policy 
we  then  adopted  has  been  since  maintained.  While  we  would  draw 
them  nearer  to  us  by  bonds  of  mutual  interest  and  friendly  feeling, 
our  sole  political  connection  springs  from  the  desire  that  they  should 
be  prosperous  and  happy  under  the  republican  form  of  government 

217 


§  49.]  INTERVENTION.  [CHAP.  III. 

\\\\\rh  tlu'v  ;ni«l  we,  have  clioseii.  We  aim  to  bo  regarded  as  a  disin- 
terested I'liend  and  eoimselor,  but  we  do  not  assume  to  impose  our 
wishes  upon  them,  or  to  act  as  arbitrator,  or  umpire,  in  their  disputes 
uuless  moved  to  it  by  the  wish  of  botli  parties,  or  by  controlling  inter- 
ests of  our  own." 

Mr.  rrelin-jbuysen,   Sec.   of  State,  to  Mr.  Trescot,  Feb.  24,  1882;  MSS.  Inst., 
Chili. 

"  It  seems  to  the  President  that  the  time  has  come  when  an  effort  for 
peace  between  the  South  American  Republics  can  be  made  with  some 
reasonable  hope  of  success.  He  has  accordingly  instructed  Mr.  Logan 
upon  tlie  subject,  giving  him  a  large  measure  of  discretion. 

"This  instruction  is  taken  to  you  by  Mr.  Logan,  who  is  directed  to 
confer  with  you  before  proceeding  to  Santiago.  You  are  aware  that 
while  Mr.  Trescot  was  in  Peru  he  visited  Montero,  and  recognized  him 
as  the  head  of  the  Eepublic.  It  may  now  be  assumed  that  this  act  has 
received  the  sanction  of  the  Department.  It  will,  therefore,  be  proper 
tliat  after  conferring  with  Mr.  Logan  and  taking  every  possible  precau- 
tion to  prevent  the  difference  between  our  legations  in  Chili  and  Peru, 
which  have  unhapinly  thwarted  the  policy  and  lessened  the  influence 
of  the  United  States  in  the  past,  you  will  proceed  at  an  early  day  to  join 
the  only  Government  in  Peru  which  is  now  recognized  by  the  United 
States. 

"It  is  understood  that  the  principal  diflticulty  in  the  way  of  opening 
negotiations  is  the  disinclination  of  the  Chilian  Government  to  recog- 
nize Montero  and  his  Government.  Mr.  Logan's  first  efforts  at  San- 
tiago will  be  directed  to  removing  this  obstacle  and  to  securing  at  least 
such  provisional  recognition  as  may  be  involved  in  the  fact  of  negotia- 
tions. If  this  shall  be  found  to  involve  the  calling  together  of  a  con- 
gress by  President  Montero,  Mr.  Logan  will  endeavor  to  prevent  any 
Chilian  opposition  to  it. 

*'  Meanwhile  it  will  be  your  duty  to  impress  upon  President  Montero 
and  his  advisers  the  necessity  of  recognizing  these  severe  results  of  un- 
successful war. 

"  The  interest  which  the  United  States  takes  in  the  fortunes  of  Peru, 
and  the  great  desire  which  they  have  to  preserve  its  autonomy,  and  as 
much  of  its  territory  and  wealth  as  is  consistent  with  the  reasonable 
rights  and  demands  of  Chili,  must  not  be  interpreted  into  a  purpose  to 
stand  by  Peru  in  refusing  and  resisting  such  demands.  You  must  make 
that  clear.  If  the  voice  of  the  United  States  could  he  listened  to,  the 
war  would  be  ended  by  the  payment  of  a  money  indemnity  without  sac- 
rificing territory.  But  the  voice  of  the  United  States  will  not  be  listened 
to  while  .speaking  only  such  words.  Chili  will  not  abandon  all  the  ac- 
quisitions that  the  fortunes  of  war  have  given  her.  Unless  Peru  con- 
sents to  negotiate  on  the  basis  of  a  surrender  of  territory,  the  United 
States  are  ])owerless  to  help  her. 
218 


CHAP.  Ill]  MEDIATION.  [§  49. 

"  Tf  Pern  consents  to  negotiate  on  the  basis  of  a  cession  of  territory, 
30U  will  acquaint  President  Montero's  Government  generally  with  the 
fact  that  Mr.  Logan  is  instructed  in  that  event  to  secure  from  Chili  the 
most  favorable  terms  which  the  moral  influence  of  the  United  States 
can  obtain. 

"  The  form  in  which  the  two  belligerents  will  approach  each  other,  if 
they  consent  to  enter  upon  negotiations,  must  necessarily  be  left  much 
to  opj)ortunity  and  to  the  judgment  of  Mr.  Logaii.  You  will  confer 
with  him  freely  as  to  the  feeling  of  Peru,  and  he  must  decide  whether 
he  can  obtain  terms  which  he  is  willing  to  submit  to  Peru;  whether  the 
ofl'er  must  first  come  from  Peru  or  from  Chili  is  a  ])oint  which  must  be 
left  for  liis  decision.  He  is  authorized  to  go  to  Peru  at  the  proper  time 
and  confer  witb  you.  In  approaching  the  Government  of  Peru  he  is 
directed  to  avail  himself  always  of  your  intermediary  services. 

"  J  inclose  for  your  guidance  a  copy  of  the  instructions  to  Mr.  Logan, 
and  also  a  copy  of  the  instructions  to  Mr.  Maney. 

"  In  case  matters  happily  proceed  so  far  as  to  call  for  serious  negotia- 
tions, Mr.  Maney  is  instructed  to  do  whatever  may  be  advised  by  you 
or  Mr.  Logan,  or  both,  and  to  take  no  steps  until  so  requested." 

Mr.  Frelingbuysen,  Sec.  of  State,  to  Mr.  Partridge,  June  26,  leH2;  MSS.  Inst., 
Peru  ;  For.  Rel.,  1882. 

A  concerted  movement  for  this  purpose  will  not  be  approved.  The 
Unitefl  States  minister  at  Lima  having,  early  in  1883,  united  with  the 
representatives  of  France,  Great  Britain,  and  Italy,  to  bring  about  a 
joint  intervention  in  South  American  aflairs,  tMs  action  was  disapproved 
by  the  Secretary  of  State. 

Mr.  Frelinghuyseu,  Sec.  of  State,   to  Mr.  Logan,  March  7,  1883  ;  MSS.  Inst., 
Chili ;  same  to  same,  April  2,  1883.     See  infra,  §  102. 

A  volunteer  i^roposition  by  the  minister  of  the  United  States  and 
other  Ibreigu  ministers  at  Hayti,  to  mediate  between  the  Haytiau  Gov- 
ernment and  insurgents,  cannot  be  sustained  by  the  Government  of  the 
United  States. 

Mr.  J.  Davis,  Asst.  Sec,  to  Mr.  Laugston,  June  4,  1883;  MSS.  lust.,  Hayti;  For. 
Rel.,  1883. 

I\lr.  Hall  is  informed  that,  while  the  United  States  Government  is 
prei)ared  to  use  its  influence  in  averting  a  conflict  and  to  promote  peace, 
and  deems  advisable  a  voluntary  combination  of  interests  of  the  Central 
American  states,  no  display  of  force  on  the  part  of  any  one  or  more 
states  to  coerce  the  others  can  be  countenanced. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Hall,  March  10,  1885.     MSS.  lnst.,Cen.  Am. ; 
For.  Rel.,  1885. 

"  England  again  offered  mediation  between  the  United  States  and 
Mexico  in  1847,  but  the  offer  was  not  accepted  by  either  party.  There 
have  been  instances  of  offers  of  mediation  in  civil  wars;  but  they  pre- 

219 


^W9.]  INTERVENTION.  [CHAP.  III. 

sent  cnses  of  such  delicacy  and  difficulty  as  to  Lave  been  seldom  ac- 
cepted, or,  if  accepted,  successful." 

Daua's  Wlieatou,  $  73,  note  40. 

"There  is  u  distinction  between  the  case  of  good  offices  and  of  mediator. 
The  (leiiiaud  of  ^'ood  ollices  or  their  acceptance  does  not  confer  the  right 
of  mediator.  (Kliiber,  Droit  des  Gens  Moderne  de  I'Europe,  Part  II, 
tit.  2,  §  1.,  ch.  2,  §  160.)  The  offer  of  Russia  to  mediate  between  the 
United  States  and  Great  Britain,  in  the  war  of  1812,  was  at  once  ac- 
cei)ted  by  the  former;  and  in  order  to  avoid  delays  incident  to  the  dis- 
tance of  the  parties.  ])ienipotentiaries  were  commissiomd  to  conclude 
a  treaty  of  peace  with  persons  clothed  with  like  power  on  the  part  of 
Great  Britain.  (Wait's  State  Papers,  Vol.  IX,  p.  223  ;  President  Mad- 
ison's message,  May  25,  1813.)  The  refusal  of  Great  Britain,  at  that 
time  in  tlie  closest  alliance  with  Eussia,  can  only  be  accounted  for  by 
the  supposed  accordance  between  the  United  States  and  Russia  in  ques- 
tions of  maritime  law.  Sir  James  Mackintosh  considered  the  rejection 
of  the  proffered  mediation,  whereby  hostilities  were  unnecessarily  pro- 
longed, the  less  justifiable,  as 'a  mediator  is  a  common  friend,  who 
counsels  both  parties  with  a  weight  proportioned  to  their  belief  in  his 
integrity  an<i  their  respect  for  his  power.  But  he  is  not  an  arbitrator, 
to  whose  decisions  they  submit  their  differences,  and  whose  award  is 
binding  on  them.  Hansard's  Parliamentarv  Debates,  Vol.  XXX,  p. 
626,  April  11, 1815." 

Lawrence's  Wheaton,  ed.  1863,  p.  495. 

As  to  mediation  of  Enssia  in  war  of  1812,  see  3,  Am.  State  Papers;  For.  Eel., 

623  Jf. 
As  to  the  attitude  assumed  by  the  successive  administrations  of  Adams  and 

Jackson  to  Bolivar,  see  instructions  of  Mr.  Van  Buren,  Sec.  of  State,  to  Mr. 

Moore,  April  9,  1829;  same  to  same,  Dec.  12,  1829;  MSS.  Inst.,  Am.  States. 
A  part  of  the  correspondence  between  Buenos  Ayres  and  the  United  States  in 

reference  to  mediation  in  respect  to  the  differences  between  Buenos  Ayres 

and  France  will  be  found  in  the  British  and  Foreign  State  Papers  for  1842-3, 

vol.  31,  790/. 
As  to  San  Salvador's  difficulties  with  British  authorities,  see  Senate  Ex.  Doc. 

No.  43,  31  St  Cong.,  2d  sess. 
As  to  the  oiler  of  friendly  offices  by  the  Government  of  the  United  States  to 

terminate  (he  war  raging  in  South  America  between  Paraguay,  on  the  one 

side,   and   Brazil,  the  Argentine  Republic,  and  Uruguay  on  the  other,  see 

Mr.  Sewrtrd,  Sec.  of  State,  to  Mr.  Asboth  (Buenos  Ayres),  Dec.  20,  1866. 

MSS.  inst.,  Arg.  Rt^p. 
As  to  mediation  between  Spain  and  Peru,  see  Mr.  Seward,  Sec.  of  State,  to  Mr. 

Hovey,  Dec.  20,  1866;  MSS.  Inst.,  Peru. 
As  to  mediation  between  Spain  and  the  allied  South  American  republics,  see 

Mr.  Fish,  Secretary  of  State,  to  Mr.  Kilpatrick,  Jan.  15,  1868 ;  MSS.  Inst., 

Chili. 
For  other  instances  of  mediation  see  also  Mr.  Evarts  to  Mr.  Osborne,  Dec.  27, 

1880;  Mr.  Blaine  to  Mr.  Osborne,  June  13,  1881;  Mr.  Blaine  to  Mr.  Kil- 
patrick, June  15,  1881  ;  MSS.  Inst.,  Chili. 
As  to  mediation  to  renew  diplomatic  intercourse  between  France  and  Mexico, 

see  Mr.  Fish,  Sec.  of  State,  to  Mr.  Nelson,  Dec.  19,20,  1872;  MSS.  Inst.,  Mex. 

220 


CHAP.  III.]  NECESSITY.  [§  50. 

The  armistice  between  Spain  and  the  allied  republics  of  Bolivia,  Chili,  Ecua- 
dor, and  Peru,  concluded  in  1871,  under  the  mediation  of  the  United  States, 
will  be  found  in  the  British  and  Foreign  State  Papers  for  1874-5,  vol.  G6. 

As  to  mediation  between  Holland  and  Venezuela,  see  Mr.  Fish  to  Mr.  Birney, 
March  9,  1876;  June  14,  187G;  MSS.  Inst.,  Netherlands. 

As  to  mediation  between  China  and  Japan,  see  Mr.  Evarts,  Sec.  of  State,  to  Mr. 
G.  F.  Seward,  March  4,  1880 ;  MSS.  Inst.,  China. 

As  to  mediation  between  Mexico  and  Guatemala,  see  Mr.  Blaine  to  Mr.  Morgan, 
Nov.  2S,  quoted  infra,  ^  58. 

As  to  mediation  between  Chili  and  Peru,  see  infra,  $  .^9. 

A  summary  of  modern  mediations  will  be  found  in  Calvo,  Droit  Int.,  3d  ed.,  2 
vol.,  536  flP. 

{6)  NECESSITY,   AS  WHERE    MARAUDERS   CAN  BE   CHECKED   ONLY  BY 

SUCH   INTERVENTION. 

§   50. 

When  there  is  no  other  way  of  warding  off  a  perilous  attack  upon 
a  country,  the  sovereign  of  such  country  can  intervene  by  force  in  the 
territory  from  which  the  attack  is  threatened  in  order  to  prevent  such 
attack. 

Supra,  §  17. 

By  the  law  of  nations  a  piratical  settlement  in  a  remote  island,  not 
under  the  control  of  any  civilized  nation,  may  be  broken  up  by  United 
States  cruisers,  and  the  offenders  seized  and  sent  to  the  United  States 
for  trial. 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Baylies,  April  3,  1832;  MSS.  Inst.,  Am. 
States.     See  infra,  §  50o. 

"  Unfortunately,  many  of  the  nations  of  this  hemisphere  are  still  self- 
tortured  by  domestic  dissensions.  Revolution  succeeds  revolution ;  in- 
juries are  committed  upon  foreigners  engaged  in  lawful  pursuits.  Much 
time  elapses  before  a  government  sufficiently  stable  is  erected  to  justify 
expectation  of  redress.  Ministers  are  sent  and  received,  and  before  the 
discussions  of  past  injuries  are  fairly  begun,  fresh  troubles  arise  j  but 
too  frequently  new  injuries  are  added  to  the  old,  to  be  discussed  together 
■with  the  existing  government,  after  it  has  proved  its  ability  to  sustain 
the  assaults  made  upon  it,  or  with  its  successor,  if  overthrown.  If  this 
unhappy  condition  of  things  continue  much  longer,  other  nations  will 
be  under  the  painful  necessity  of  deciding  whether  justice  to  their  suf- 
fering citizens  does  not  require  a  prompt  redress  of  injuries  hy  their 
own  power,  without  waiting  for  the  establishment  of  a  government  com- 
petent  and  enduring  enough  to  discuss  and  make  satisfaction  for  them." 
President  Jackson's  Seventh  Annual  Message,  1835. 

"  It  is  a  fundamental  i)nnciple  in  the  laws  of  nations  that  every  state 
or  nation  has  full  and  complete  jurisdiction  over  its  own  territory  to  the 
exclusion  of  all  others,  a  principle  essential  to  independence,  and  there- 

221 


^S  jOa.]  INTERVENTION.  '  [CHAP,  III. 

tore  lii'ld  most  sacred.  It  is  accordingly  laid  down  by  all  wiiters  ou 
tlntsf  laws  who  treat  of  the  subject,  that  nothiug  short  of  extreme  nc- 
cef<si(y  v:\u  Justify  a  belli^''erei)t  in  entering  with  an  armed  force  on  the 
territory  of  a  neutral  power,  and,  when  entered,  in  doing  any  act  wh.icli 
is  not  forced  on. him  by  the  like  necessity  which  justitied  the  entering." 

Mr.  Calhoun's  speech  on  McLeocl's  case,  June  11,  1^41 ;  3  Calhoun's  Works,  (W5. 
(See  supra,  v>  21,  as  to  McLeocFs  case ;  infra,  ij  50,  c,  as  to  the  case  of  the 
Caroline.) 

As  to  expenses  incurred  liy  Texas  in  repelling  invasions  of  Indians  and  Mexicans, 
see  S.  Ex.  Doc.  19,  Forty-fifth  Congress,  second  session,  .January  22,  1878. 

As  to  depredations  by  reason  of  incursions  of  Mexicans  and  Indians,  and  resolu- 
tion of  Texas  claiming  indemnity  for  losses  thereby  sustained,  and  asking 
to  be  reimbursed  for  expenses  incurred  in  defending  frontiers,  see  H.  Mis. 
Doc.  37,  Forty-fourth  Congress,  first  session,  July  17,  1876;  H.  Mis.  Doc. 
185,  Forty-fourth  Congress,  first  session. 

For  report  of  special  committee,  recommending  that  a  military  force  be  stationed 
on  the  Rio  Grande,  and  that  the  President  authorize  the  troops,  when  in 
close  pursuit  of  the  raiders,  to  cross  to  the  Mexican  side  and  use  such 
measures  as  will  recover  the  stolen  property  and  prevent  such  raids,  see  H. 
Rep.  343,  Forty-fourth  Congress,  first  ses.sion. 

For  testimony  taken  by  Committee  on  Military  Affairs,  see  H.  Mis.  Doc.  64 
Forty-fifth  Congress,  second  session,  January  12,  1878. 

As  to  pursuit  of  deserters  in  Canada,  see  Brit,  and  For.  State  Papers,  1860-'l, 
vol.  51. 

As  to  treaty  with  Mexico  for  reciprocal  pursuit  of  raiders,  see  sujara,  §  19. 

(a)  Amelia  islaxd. 
§  50a. 

Amelia  Island,  at  the  mouth  of  St.  Mary's  River,  and  at  that  time  in 
Spanish  territory,  was  seized  in  1817  by  a  band  of  buccaneers,  under 
the  diiectiou  of  an  adventurer  named  McGregor,  who  in  the  name  of 
the  insurgent  colonies  of  Buenos  Ayres  and  Venezuela  preyed  indis- 
crimiuatelv  on  the  commerce  of  Spain  and  of  the  United  States.  The 
Spanish  Governuient  not  being  able  or  willing  to  drive  them  ofl',  and 
the  nui.sance  being  one  which  required  immediate  action,  President 
:Monroe  called  his  Cabinet  together  in  October,  1817,  and  directed  that 
a  ves.sel  of  war  should  proceed  to  the  island  and  expel  the  marauders, 
destroying  their  works  and  vessels. 

•'  In  the  summer  of  the  present  year,  an  expedition  was  set  on  foot 
East  Florida  V)y  per.sons  claiming  to  act  under  the  authority  of  some 
of  the  colonies,  who  took  possession  of  Amelia  Island,  at  the  mouth  of 
St.  Mary's  Kiver,  near  tlie  boundary  ot  the  State  of  Georgia.  As  the 
province  lies  eastward  of  the  Mississippi,  and  is  bounded  by  the  United 
States  and  the  ocean  on  every  side,  and  has  been  a  subject  of  negoti- 
ation with  the  Government  of  Spain,  as  an  indemnity  for  losses  by  spo- 
liation or  in  exchange  for  territory  of  equal  value  westward  of  the 
Mississippi,  a  fact  well  known  to  the  world,  it  excited  surprise  that  any 
countenance  should  be  given  to  this  measure  by  any  of  the  colonies. 
As  it  would  be  difficult  to  reconcile  it  with  the  friendly  relations  exist- 
ing between  the  United  States  and  the  colonies,  a  doubt  was  enter- 
222 


CHAP.  III.]  AMELIA    ISLAND.  [§  50a. 

tiiiiKwi  whethei'  it  had  been  authorized  by  them  or  any  of  them.  This 
doubt  has  j^ained  stieiigth  by  the  circumstances  which  have  uiifohled 
themselves  in  the  prosecution  of  the  enterprise,  which  have  marked  it 
as  a  mere  private  unauthorized  adventure.  Projected  and  commenced 
with  an  incompetent  force,  reliance  seems  to  have  been  i)hiced  on  what 
might  be  drawn,  in  defiance  of  our  laws,  from  within  our  limits;  and,  of 
late,  as  their  resources  have  failed,  it  has  assumed  a  more  marked  char- 
acter of  unfriendliness  to  us,  the  island  being  made  a  channel  for  the 
illicit  introduction  of  slaves  from  Africa  into  the  United  States,  an  asy- 
lum for  fugitive  slaves  from  the  neighboring  States,  and  a  port  for 
smuggling  of  every  kind. 

"  A  similar  establishment  was  made  at  an  earlier  period  by  persons  of 
the  same  description,  in  the  Gulf  of  Mexico,  at  a  place  called  Galves- 
ton, within  the  limits  of  the  United  States,  as  we  contend,  under  the 
cession  of  Louisiana.  This  enterprise  has  been  marked  in  a  more  sig- 
nal manner  by  all  the  objectionable  circumstances  which  characterized 
the  other,  and  more  particularly  by  the  equipment  of  i^rivateers,  which 
have  annoyed  our  commerce,  and  by  smuggling.  These  establishments, 
if  ever  sanctioned  by  any  authority  whatever,  which  is  not  believed, 
have  abused  their  trust  and  forfeited  all  claims  to  consideration.  A 
just  regard  for  the  lights  and  interests  of  the  United  States  required 
that  they  should  be  suppressed,  and  orders  have  accordingly  been 
issued  to  that  efl'ect.  The  imperious  considerations  which  produced 
this  measure  wilj  be  explained  to  the  parties  whom  it  may  in  any  de- 
gree concern." 

President  Monroe's  First  Annual  Message,  1817. 

President   Monroe's   Messages  of  Dec.  15,  1817,  Jan.   13,  1818,  March  25,  1818, 

as  to  Amelia  Island,  are  given  in  11  Wait's  State  Papers,  343. 
On  the  same  topic,  see  report  of  House  Com.  on  For.  Eel.,  Jan.  10,  1818,  4  Am. 

State  Fitp.  ;    For.  Eel.,  132. 

"  You  will  have  been  informed  through  the  channel  of  the  public 
prints  of  the  manner  in  which  Amelia  Island  has  in  the  course  of  the 
last  summer  been  occupied  by  an  assemblage  of  adventurers  under 
various  commanders,  and  with  commissioners,  real  or  pretended,  from 
several  of  the  South  American  insurgent  governments.  You  must  have 
beard  also  of  the  feeble  and  ineffectual  attempt  made  by  the  Spanish 
commanding  authorities  in  East  Florida  to  recover  possession  of  the 
island.  A  similar  band  of  desperate  characters  from  various  nations, 
and  presumably  impelled  by  motives  of  plunder  alone,  have  formed  a 
lodgment  at  Galveston,  which  we  consider  within  the  limits  of  the 
United  States.  These  places  have  not  only  been  consequently  made 
receptacles  for  privateers  illegally  fitted  out  from  our  ports,  but  the 
means  of  every  species  of  illicit  traflBc,  and  especially  of  introducing 
slaves  illegally  into  the  United  States.  The  President  has  therefore 
determined  to  break  up  those  settlements,  which  are  presumed  to  have 
been  made  without  proper  authority  from  any  Government ;  and  which 

223 


^^  50&.]  INTERVENTION.  [CHAP.  III. 

if  ;mlli()riz('(l  by  iiny  Government,  have  assumed  an  attitude  too  per- 
nieious  to  tlie  jieace  and  prosperity  of  this  Union  and  of  its  citizens  to 
l)e  tolcr.ited.  The  orders  for  breaking  them  up  have  been  given,  and 
are  in  a  tniin  of  exe(5ution.  Possession  will  be  taken  of  Galveston  as 
within  the  limits  of  the  United  States,  and  perhaps  of  Amelia  Island, 
to  prevent  its  being  taken  again  by  similar  adventurers  for  the  same 
])MriK>s('s,  Spain  being  notoriously  unable  either  to  retain  possession  of 
it  against  them  or  to  recover  it  from  them." 

Mr.  A<lanis,  Sec.  of  State,  to  Mr.  Erving,  Nov.  11,  1H17 ;  MSS.  Inst.  Ministers. 

'•  When  an  island  is  occupied  by  a  nest  of  pirates,  harassing  the  com- 
merce of  the  United  States,  they  may  be  pursued  and  driven  from  it, 
by  authority  of  tlie  United  States,  even  though  such  island  were  nom- 
inally under  the  jurisdiction  of  Spain,  Spain  not  exercising  over  it 
any  control." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Hyde  De  Neiiville,  Jan.  27,  1818;  MSS.  For. 
Leg.  notes.  See  President  Monroe,  confidential  to  Mr.  Madison,  Nov.  24, 
Dec.  22, 1817 ;  Madison  MSS.,  Dep.  of  State. 

A  detailed  account  of  McGregor's  occupation  of,  and  filibustering  expeditions 
from,  Amelia  Island  is  given  m  2  Parton's  Jackson,  421^. 

"No  dissatisfaction  has  been  expressed  here  at  our  occupation  of 
Amelia  Island." 

Mr.  Rush,  Minister  at  London,  to  Mr.  Adams,  Sec.  of  State,  March  2,  1818 ;  MSS. 
Dispatch,  Gr.  Brit. 

President  Monroe's  announcement  that  he  had  authorized  expeditions 
against  Amelia  Island  and  Galveston  for  the  purpose  of  suppressing 
the  bands  of  buccaneers  who  were  harbored  in  those  places  was  fol- 
lowed by  protests,  not  merely  from  Unis,  the  Spanish  minister  at  Wash- 
ington, but  from  Pazos,  the  agent  of  the  as  yet  unrecognized  Spanish- 
American  colonies.  The  Secretary  of  State  having  declined  to  confer 
otlieially  with  Pazos  on  the  subject,  he  presented  a  petition  to  the 
House  of  Kepresentatives.  This  petition,  however,  though  it  had  the 
su|»port  of  the  Speaker,  Mr.  Clay,  was  laid  on  the  table  on  March  14, 
IS  18,  by  a  vote  of  124  to  28. 

The  possession  taken  by  the  United  States  of  Amelia  Island,  in 
Florida,  gave  it  a  possessory  title,  for  which  it  was  accountable  only  to 
Spain. 

Mr.  Gallatin,  minister  to  France,  to  Baron  Pasquier,  French  minister  of  foreign 

aUairs,  June  28,  1821 ;  2  Gallatin^  writings,  187. 
As  to  de  facto  government  of  Amelia  Island,  see  siipra,  §  7. 

(6)   PENSACOI.A    AND   OTHER  FlORIBA  POSTS. 

§506. 

In   1815,  under  orders  of  Mr.  Monroe,  measures  were  taken  for  the 

destruction  of  a  fort  held  by  outlaws  of  all  kinds  on  the  Appalachicola 

Ptiver,  then  within  the  Spanish  Territory,  from  which  parties  had  gone 

forth  to  pUlage  within  the  United  States.     The  governor  of  Pensacola 

224 


CHAP.  III.]  SEMINOLE    WAR.  [§  50&. 

had  been  called  upon  to  suppress  tbe  evil  and  punish  the  marauders, 
but  had  refused ;  and,  on  his  refusal,  the  Spanish  Territory  was  en- 
tered, and  the  fort  attacked  and  destroyed  on  the  ground  of  necessity. 

See  President  Monroe's  Second  Annual  Message,  1818. 

"  In  authorizing  Major-General  Jackson  to  enter  Florida  in  pursuit 
of  the  Seminoles,  care  was  taken  not  to  encroach  on  the  rights  of  Spain. 
I  regret  to  have  to  add  that,  in  executing  this  order,  facts  were  dis- 
closed respecting  the  conduct  of  the  officers  of  Spain  in  authority  there, 
in  encouraging  the  war,  furnishing  munitions  of  war,  and  other  sup- 
plies to  carry  it  on,  and  in  other  acts  not  less  marked,  which  evinced 
their  participation  in  the  hostile  purposes  of  that  combination,  and  jus- 
tified the  confidence  with  which  it  inspired  the  savages  that  by  those 
officers  they  would  be  protected.  A  conduct  so  incompatible  with  the 
friendly  relations  existing  between  the  two  countries,  particularly  with 
the  positive  obligation  of  the  fifth  article  of  the  treaty  of  1795,  by  which 
Spain  was  bound  to  restrain,  even  by  force,  those  savages  from  acts  of 
hostility  against  the  United  States,  could  not  fail  to  excite  surprise. 
The  commanding  general  was  convinced  that  he  should  fail  in  his  ob- 
ject, that  he  should,  in  effect,  accomplish  nothing,  if  he  did  not  deprive 
those  savages  of  the  resource  on  which  they  had  calculated,  and  of  the 
Ijrotection  on  which  they  had  relied  in  making  the  war.  As  all  the 
documents  relating  to  this  occurrence  will  be  laid  before  Congress,  it  is 
not  necessary  to  enter  into  further  detail  respecting  it. 

"Although  the  reasons  which  induced  Major-GeneralJackson  to  take 
these  posts  were  duly  appreciated,  there  was  nevertheless  no  hesitation 
in  deciding  on  the  course  which  it  became  the  Government  to  pursue. 
As  there  was  reason  to  believe  that  the  commanders  of  these  posts 
had  violated  their  instructions,  there  was  no  disposition  to  impute  to 
their  Government  a  conduct  so  unprovoked  and  hostile.  An  order  was 
in  consequence  issued  to  the  general  in  command  there,  to  deliver  the 
posts — Peusacola,  unconditionally,  to  any  person  duly  authorized  to  re- 
ceive it,  and  Saint  Mark's,  which  is  in  the  heart  of  the  Indian  country, 
on  the  arrival  of  a  competent  force  to  defend  it  against  those  savages 
and  their  associates." 

President  Monroe's  Second  Annual  Message,  1818.     See  President  Monroe  to  Mr. 
Madison,  July  20, 1818,  Madison  MSS.,  Dep.  of  State. 

Necessity  justifies  an  invasion  of  foreign  territory  so  as  to  subdue  an 
ex])ected  assailant;,  and  on  this  ground  may  be  sustained  General 
Jackson's  attack  on  Pensacola. 

Mr.  J.  Q.  Adams,  4  J.  Q.  Adaois's  Mem.,  113. 

"The  Executive  Government  have  ordered,  and,  as  I  conceive,  very 
properly,  Amelia  Island  to  be  taken  possession  of.  This  order  ought 
to  be  carried  into  execution  at  all  hazards,  and  simutaneously  the  whole 
of  East  Florida  seized  and  held  as  indemnity  ior  tlie  outrages  of  Spain 
upon  the  pioperty  of  our  citizens.  *  *  *  The  order  being  given  for 
the  possession  of  Amelia  Island,  it  ought  to  be  executed,  or  our  enemies, 

S.  Mis.  102— VOL.  1—15  22.5 


§  50&.]  INTERVENTION.  [CHAP.  III. 

iufvnuiJ  (I lid  external^  will  use  it  to  the  disadvantage  of  our  Govermmnt. 
If  our  frooji.s  enter  the  territori/  of  Spain  in  pur.sidt  of  our  Indian  enen:y, 
all  opposition  that  they  meet  with  'hiust  he imt  down,  or  we  will  be  involved 
in  danger  and  disgrace." 

General  JacksdU  to  Mr.  Monroe,  Jan.  6,  1818,  MSS.  Monroe  Papers. 

"  I  could  adopt  no  other  way  to  put  'rm  end  to  the  ?r«r '  but  by  possess- 
ing; niy.sflf  of  the  stronghold  that  was  a  refuge  to  the  enemy,  and  af- 
forded them  the  means  of  offense." 

General  Jackson's  (1818)  letter  to  Sec.  of  War.  from  papers  of  Mr.  Geo.  W. 
Campbell,  quoted  2  Parton's  Jackson,  500. 

General  Jackson  put  his  seizure  and  occupation  of  the  fort  at  Saint 
Mark's,  which  was  within  Spanish  territory,  expressly  on  the  ground  of 
necessity.  In  his  letter  to  the  governor  of  Saint  Mark's,  which  he  sent 
by  his  aidede-can^p.  Lieutenant  Gadsden,  he  declared  that  the  Spanish 
garrison,  from  its  feebleness,  would  be  unable  to  resist  the  attacks  of 
Indians  who  intended  to  make  it  a  base  for  their  operations  against  the 
United  States. 

"To  prevent  the  recurrence  of  so  gross  a  violation  of  neutrality,  and 
to  exclude  our  savage  enemies  from  so  strong  a  hold  as  Saint  Mark's,  I 
deem  it  expedient  to  garrison  that  fortress  with  American  troops  until 
the  close  of  the  present  war.  This  measure  is  justifiable  on  the  immu- 
table i)rinciples  of  self-defense,  and  cannot  bu,t  be  satisfactory,  under 
existing  circumstances,  to  his  Catholic  Majesty  the  King  of  Spain. 
Under  existing  treaties  between  the  two  Gov^ernmeuts,  the  King  of 
Spain  is  bound  to  preserve  in  peace  with  the  citizens  of  the  United 
States,  not  only  his  own  subjects,  but  all  Indian  tribes  residing  within 
his  territory.  When  called  upon  to  fulfill  that  part  of  the  treaty  in  re- 
lation to  a  savage  tribe  who  have  long  depredated  with  impunity  on  the 
American  IVontier,  incompetency  is  alleged,  with  an  acknowledgment 
that  the  same  tribe  have  acted  in  open  hostility  to  the  laws,  and  invaded 
the  rights  of  His  Catholic  Majesty.  As  a  mutual  enemy,  therefore,  it  is 
expected  that  every  facility  will  be  afforded  by  the  agents  of  the  King 
of  Spain  to  chastise  these  lawless  and  inhuman  savages.  In  this  light 
is  the  possession  of  Saint  Mark's  by  the  American  forces  to  be  viewed." 

2  Parton's  Jackson,  451. 

"  When  they  (European  powers)  know  the  whole  of  the  affair  of  Pen- 
sacola,  I  have  no  doubt  they  will  withdraw  all  idea  of  intermeddling 
between  Spain  and  us.  I  trust  we  shall  be  able  to  avoid  entanglements 
with  the  European  alliance.  We  may  let  them  alone,  for  they  cannot 
conquer  the  South  Americans." 

Mr.  Jefferson  to  Mr.  Monroe,  President,  Sept.  17,   1618;  MSS.  Monroe  Papers, 
Dep.  of  State. 

When  the  sovereign  of  a  territory  permits  it  to  be  made  the  base  of 
hostilities  by  outlaws  and  savages  against  a  country  with  which  such 
sovereign  is  at  peace,  the  government  of  the  latter  country  is  entitled, 
as  a  matter  of  necessity,  to  pursue  the  assailants  wherever  they  may 
be,  and  to  take  such  measures  as  are  necessary  to  put  an  end  to  their 
aggressions. 

Mr.  Adams,  Sec.  of  State,  to  Mr.  de  Onis,  Nov.  30,  1818 ;  MSS.  For.  Leg.  Notes. 
226 


CHAP.  III.]  STEAMBOAT    CAKOLINE.       (1838.)  [§  50c. 

Mr.  Adams's  defense  of  GeneralJacksou's  course  in  the  Semiuole  war, 
to  which,  after  some  modificatious,  he  obtained  the  assent  of  Mr.  Mon- 
roe and  of  the  Cabinet,  is  a  paper  which,  though  of  extraordinary  abil- 
ity, is  of  too  great  length  to  be  here  republished.  The  point  of  inter- 
national law,  above  stated,  is  the  exclusive  basis  on  which  it  rests. 

As  to  Jackson's  action  in  capturing  Pensacola,  see  3  Schouler's  Hist. 
U.  S.,  74.  The  President,  after  consulting  the  Cabinet,  directed  Pen- 
sacola to  be  given  bacii  to  Spain. 

As  to  effect  of  taking  of  Pcusacola  ou  France,  see  dispatch  of  Mr.  Gallatin  to 
Mr.  J.  Q.  Adams,  July  22,  1818 ;  2  Gallatin's  writings,  G9. 

The  course  of  Mr.  Monroe  in  sustaining  General  Jackson  in  this  movement  la 
discussed  in  1  Benton's  Thirty  Years  in  the  Senate,  167. 

General  Jackson's  corresijondence  in  reference  to  the  war  conducted  by  him  in 
Florida,  is  given  in  1  Amer.  State  Papers,  MLsc,  801^. 

(c)  Stea:mboat  Caroline.     (1838.) 

§50c. 

"The  destruction  of  the  steamboat  Caroline  at  Schlosser,  four  or  five 
years  ago,  occasioned  no  small  degree  of  excitement  at  the  time,  and 
became  the  subject  of  correspondence  between  the  two  Governments. 
That  correspondence  having  been  suspended  for  a  considerable  period, 
was  renewed  in  the  spring  of  the  last  year,  but  no  satisfactory  result 
having  been  arrived  at,  it  was  thought  proper,  though  the  occurrence 
had  ceased  to  be  fresh  and  recent,  not  to  omit  attention  to  it  on  the 
present  occasion.  It  has  only  been  so  far  discussed  in  the  correspond- 
ence now  submitted  as  it  was  accomplished  by  a  violation  of  the  terri- 
tory of  the  United  States.  The  letter  of  the  British  minister,  while  at- 
tempting to  justifj"  that  violation  upon  tlie  ground  of  a  ])ressing  and 
overruling  necessity,  admitting,  nevertheless,  that,  even  if  justifiable, 
an  apology  was  due  for  it,  and  accompanying  this  acknowledgment 
with  assurances  of  the  sacred  regard  of  this  Government  for  the  invio- 
lability of  national  territory,  has  seemed  to  me  suflicicnt  to  warrant 
forbearance  from  any  further  remonstrance  against  what  took  place  as 
an  aggression  on  the  soil  and  territory  of  the  country." 

President  Tyler's  Message,  transmitting  the  Treaty  of  Washington  to  the  Sen- 
ate, Aug.  11,  1842;  G  Webster's  Works,  355. 

For  notices  of  the  capture  of  the  Caroline,  wee  President  Van  Bureu's  Messages 
of  April  5,  1838,  Feb.  6,  1839,  Dec.  31,  1840  ;  House  Ex.  Doc.  302,  •2r,th 
Cong.,  2d  sess.  ;  House  Ex.  Doc.  No.  183,  25th  Cong.,  3d  sess. ;  House  Ex. 
Doc.  No.  33,  26th  Cong.,  2d  sess.  For  correspondence,  see  Brit,  and  For. 
State  Pap.  for  1841-2,  vol.  30,  173.  For  discussions  of  the  case,  see  1  Phil.  Int. 
Law,  3d  ed.,  315;  3d  id.,  60;  Hall's  Int.  Law,  246,  283. 

Mr.  Webster's  report  of  Jan.  7,  1843,  giving  correspondeuce  to  that  date  in  re- 
spect to  the  steamer  Caroline,  is  in  Senate  Doc.  No.  99,  27th  Cong.,  3d  sess. 

Mr.  J.  Q.  Adams,  when  discussing  the  Caroline  case  in  the  House  of 
Representatives,  said : 

'•I  take  it  that  the  late  affair  of  the  Caroline  was  in  hostile  array 
against  the  British  Government,  and  that   the  parties  concerned  in 

227 


§  50c.]  INTERVENTION.  [CHAP.  III. 

it  were  employed  in  acts  of  war  ajjainst  it ;  and  I  do  uot  subscribe  to 
the  very  learned  opinion  of  the  chief  justice  of  the  supreme  court  of 
New  York  (not,  I  liear,  the  chief  justice,  but  a  judge  of  the  supreme 
court)  that  there  was  no  act  of  war  committed.  Nor  do  I  subscribe 
to  it  that  every  nation  goes  to  war  only  on  issuing  a  declaration  or 
proclamation  of  war.  This  is  not  the  fact.  Nations  often  wage  war 
for  years  without  issuing  any  declaration  of  war.  The  question  is  not 
here  upon  a  declaration  of  war,  but  acts  of  war,  and  1  say  that  in  the 
judgment  of  all  impartial  men  of  other  nations  we  shall  be  held,  as  a 
nation,  responsible;  that  the  Caroline,  then,  was  in  a  state  of  war 
against  Great  Britain,  for  purposes  of  war,  and  the  worst  kind  of  war — 
to  sustain  an  insurrection.  I  will  not  say  rebellion,  because  rebellion  is 
a  crime,  and  because  I  have  heard  them  talked  of  as  patriots." 

2  Benton's  Thirty  Years  in  the  Senate,  289.    See  further  ou  this  point,  supra,  §  21. 

Mr.  Benton,  in  commenting  on  Mr.  Adams's  speech,  said  : 
"The  war  ground  they  (Mr.  Adams  and  Mr.  Cushing)  assumed  could 
only  apply  between  Great  Britain  and  the  insurgents.  She  had  no  war 
with  the  United  States.  The  attack  on  the  Caroline  was  an  invasion  of 
the  territory  of  a  neutral  power  at  peace  with  the  invader.  That  is  a 
liberty  not  allowed  by  the  law  of  nations;  not  allowed  by  the  concern 
which  any  nation,  even  the  most  inconsiderable,  feels  for  its  own  safety 
and  its  own  self-respect.  *  *  No  power  allows  it.  That  we  have 
seen  in  our  own  day  in  the  case  of  the  Poles,  in  their  last  insurrection, 
driven  across  the  Austrian  frontier  by  the  Russians,  and  the  pursuers 
stopped  at  the  line,  and  the  fugitive  Poles  protected  the  instant  they 
had  crossed  it ;  and  in  case  of  the  late  Hungarian  revolt,  in  which  the 
fugitive  Hungarians,  driven  across  the  Turkish  frontier,  were  protected 
from  pursuit.-' 

2  Benton,  ut  supra,  290.  The  subject  of  the  Caroline  case,  so  far  as  concerns  the 
prosecution  of  McLeod,  is  discussed  in  Whart.  Cr.  Law,  9th  ed.,  §§  62,283, 
493.  As  to  authorization  of  Government  as  a  defense  in  such  cases,  see 
supra,  ^  21  ;  infra,  $v>  338,  341. 

Lord  Campbell,  in  his  autobiography  (Life,  2d  ed.,  1881,  p.  19),  says: 
"The  atiair  of  the  Caroline  was  much  more  difiBcult.  Even  Lord  Grey 
told  me  he  thought  we  were  quite  wrong  in  what  we  had  done.  But 
assuming  the  facts  that  the  Caroline  had  been  engaged,  and  when 
seized  by  us  was  still  engaged,  in  carrying  supplies  and  military  stores 
from  the  American  side  of  the  river  to  the  rebels  in  Navy  Island,  part 
of  the  British  territory;  that  this  was  permitted,  and  could  not  be  pre- 
vented, by  the  American  authorities,  1  was  clearly  of  opinion  that,  al- 
though she  lay  on  the  American  side  of  the  river  when  she  was  seized, 
we  had  a  clear  right  to  seize  and  destroy  her,  just  as  we  might  have 
taken  a  battery  erected  by  the  rebels  on  the  American  shore,  the  guns 
of  which  were  tired  against  the  Queen's  troops  in  Navy  Island.  I  wrote 
a  long  justification  of  our  Government,  and  thus  supplied  the  argu- 
ments used  by  our  foreign  secretary,  till  the  Ashburton  treaty  hushed 
up  the  disi)ute." 

Mr.  Abdy  (Abdy's  Kent,  1878,  p.  148)  sums  up  his  notice  of  the 
Caroline  case  as  follows:  "Her  Majesty's  Government  having  stated 
their  regret  at  the  violation  of  territorv  complained  of,  and  at  the 
omission  or  neglect  to  explain  or  apologize  for  that  violation  at  the 
time  ot  Its  occurrence,  and  having  frankly  explained  the  circumstances 
ot  the  event,  attributable  entirely  to  the  necessity  of  the  case,  the  Gov- 
228 


CHAP.  III.]  GREYTOWN.  [§  50d,  6. 

eruftient  of  the  United  States  expressed  their  satisfaction  at  this  ex- 
hibition of  good  feeling  and  their  readiness  to  receive  these  acknowl- 
edgments and  assurances  in  the  conciliatory  spirit  in  which  they  were 
offered." 

See  also  2  Benton's  Tliirty  Years  in  the  Senate,  455. 

(d)    Gkkytoavx. 

§  50d. 

Greytown  was  a  port  on  the  IMosquito  coast,  in  which  some  United 
States  citizens  resided.  These  citizens,  and  others  interested  with  them 
in  business,  were  subjected  to  gross  indignities  and  injuries  by  the  local 
authorities,  who  were  British,  but  who  professed  to  act  under  authority 
from  the  king  or  chief  of  the  Mosquito  Islands.  The  parties  injured  ac- 
cordingly appealed  to  the  commander  of  the  United  States  sloop-of-war 
Cyane,  then  lying  near  that  port,  for  protection.  To  punish  the  author- 
ities for  their  action,  he  bombarded  the  town.  For  this  act  he  was 
denounced  by  the  British  residents,  who  claimed  that  the  British  Gov- 
ernment had  a  protectorate  oyer  that  region.  His  action  was  sustained 
by  the  Government  of  the  United  States,  the  ground  being  the  necessity 
of  punishing  in  this  way  a  great  wrong  to  citizens  of  the  United  States, 
and  preventing  its  continuance. 

Infra,  $  224. 

As  to  Britisli  title  to  this  coast,  see  infra,  §  295. 

(e)  Border  raiders. 

§  506!. 

"In  reply  to  Mr.  Gorostiza's  informal  note  of  the  28th  ultimo,  Mr. 
Forsyth  has  the  honor  to  state  that,  except  in  case  of  necessity,  General 
Gaines  will  not  occupy  ground  not  indisputably  within  the  limits  of  the 
United  States.  In  case  of  necessity,  whether  the  possession  of  the 
ground  he  may  occupy  is  now  or  has  heretofore  been  claimed  by  Mex- 
ico, cannot  be  made  a  question  by  that  officer.  He  will  take  it  to  per- 
form his  duties  to  the  United  States  and  to  fulfill  the  obligations  of  the 
United  States  to  IMexico.  The  just  and  friendly  purpose  for  which  he 
does  occupy  it,  if  he  should  do  so,  being  beforehand  explained  to  Mex- 
ico, it  is  expected  will  prevent  either  belief  or  suspicion  of  any  hostile 
or  equivocal  design  on  his  part.  It  is  not  intended  to  be  the  assertion 
of  a  right  of  property  or  possession." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Gorostiza,  May  3,  1836 ;  MSS.  Notes,  Mexico. 

"To  effect  one  of  the  great  objects  for  which  General  Gaines  is  sent 
to  the  frontier,  i.  e.,  to  fulfill  our  treaty  with  Mexico  by  protecting  its 
territory  against  the  Indians  within  the  United  States,  the  troops  of  the 
United  States  might  justly  be  sent  into  the  heart  of  Mexico,  and  their 
presence,  instead  of  being  complained  of,  would  be  the  strongest  evi- 
dence of  fidelity  to  engagements  and  friendship  to  Mexico.  Nor  could 
the  good  faith  and  friendship  of  the  act  be  doubted  if  troops  of  the 

229 


^S   ■){)('.]  INTERVENTION.  [CHAP.  III. 

United  Stales  were  senl  into  the  Mexican  territory  to  prevent  Qm- 
bodied  Mexiciui  Indians  justly  suspected  of  such  design  from  assailing 
the  frontier  settlements  of  the  United  States." 

Mr.  Forsylli.  Sec.  of  State,  to  ^^r.    Ooio.stiza,  May  10,  1836;  MSS.  Notes,  Mex- 
ico. 

"  Temporary  invasion  of  the  territory  of  ^n  adjoining  country,  when 
necessary  to  prevent  and  check  crime,  '  rests  upon  principles  of  the  law 
of  nations  entirely  distinct  from  those  on  which  war  is  justitied— upon 
the  immutable  principles  of  self-defense— upon  the  principles  which  jus- 
tify decisive  measures  of  precautions  to  prevent  irreparable  evil  to  our 
own  or  to  a  neighboring  people.''' 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Ellis,  Dec.  10,  18:iG;  MSS.  Iast.,Mex. 

"  When  necessary  to  maintain  order  and  to  comply  with  treaty  obli- 
gations to  Mexico,  the  troops  of  the  United  States  are  entitled  to  cross 
the  boundary  between  the  United  States  and  Mexico,  and  so  when  nec- 
essary to  punish  Mexican  marauding  Indians  or  to  prevent  their  incur- 
sions.'" 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Ellis,  Dec.  10,  1830;  MSS.  Inst.,  Mex. 

"Compaints  of  unfounded  seizures  of  property  by  Mexican  authorities 
on  the  Eio  Grande  frontier  have  recently  been  addressed  to  this  Depart- 
ment by  citizens  of  the  United  States.  They  inveigh  against  arbitrary 
acts  of  the  military  and  corrupt  proceedings  of  the  judicial  officers  of 
Mexico  in  that  quarter.  This  Government  is  not  disposed  to  connive 
at  any  infractions  of  the  laws  of  Mexico  by  our  citizens,  but  it  has  a 
right  to  exi)ect  that  if  they  are  charged  with  a  violation  of  those  laws 
the  cases  will  be  fairly  and  impartially  tried  and  decided.  If  a  contrary 
course  should  be  adopted  it  may  be  difficult  to  restrain  the  aggrieved 
parties  from  seeking  reparation  by  acts  of  violence  against  the  property 
of  Mexicans  on  the  southern  bank  of  the  Eio  Grande." 

Mr.  Wehster,  Sec.  of  State,  to  Mr.  Smith,  May  5,  1851 ;  MSS.  Inst..  Mexico. 

"  If  Mexican  Indians  whom  Mexico  is  bound  to  restrain  are  permitted 
to  cross  its  border  and  commit  depredations  in  the  United  States,  they 
may  be  chased  across  the  border  and  then  punished." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Almonte,  Feb.  4,  1856;  MSS.  Notes,  Mex. 

*'  l>nt  there  is  another  view  of  (mr  relations  with  Mexico,  arising  from 
tlie  nnliappy  condition  of  affairs  along  our  southwestern  frontier,  which 
dernamls  iiiiniediate  attention.  In  that  remote  region  where  there  are 
but  few  white  inhabitants,  large  bands  of  hostile  and  predatory  Indians 
roam  protniscuously  over  the  Mexican  States  of  Chihuahua  and  Sonora, 
and  our  adjoiiiiug  Territories.  The  local  governments  of  these  states 
are  perfectly  helpless,  and  are  kept  in  a  state  of  constant  alarm  by  the 
Indians.  They  have  not  the  power,  if  they  possessed  the  will,  even  to 
restrain  lawless  Mexicans  from  passing  the  border  and  committing  dep- 
230 


CHAP.  III.]  BORDER    RAIDERS.  -  [§  bOe. 

redatioDS  on  our  remote  settlers.  A  state  of  anarchy  and  violence  pre- 
vails throughout  that  distant  frontier.  The  laws  arc  a  dead  letter,  and 
life  and  i)ropert3^  wholy  insecure.  For  this  reason  the  settlement  of 
Arizona  is  arrested,  whilst  it  is  of  great  importance  that  a  chaiu  of 
inhabitants  should  extend  all  along  its  southern  border  sufficient  for 
their  own  i)rotection  and  that  of  the  United  States  mail  passing  to 
and  from  California.  Well-founded  apprehensions  are  now  entertained 
that  the  Indians  and  wandering  Mexicans  equally  lawless,  may  break  up 
the  important  stage  and  postal  communication  recently  established 
between  our  Atlantic  and  Pacific  possessions.  This  passes  very  near 
to  the  Mexican  boundary  throughout  the  whole  length  of  Arizona.  I 
can  imagine  no  possible  remedy  for  these  evils,  and  no  mode  of  restoring 
law  and  order  on  that  remote  and  unsettled  frontier,  but  for  the  Govern- 
ment of  the  United  States  to  assume  a  temporary  protectorate  over  the 
northern  portions  of  Chihuahua  and  Souora,  and  to  establish  military 
])osts  within  the  same — and  this  I  earnestly  recommend  to  Congress. 
This  protection  may  be  withdrawn  as  soon  as  local  governments  shall 
be  established  in  these  Mexican  States,  capable  of  x)erforming  their 
duties  to  the  United  States,  restraining  the  lawless  and  preserving  peace 
along  the  border." 

President  Buchanan's  Second  Annual  Message,  1858. 

"It  is  a  gratification  to  be  able  to  announce  that,  through  the  judicious 
and  energetic  action  of  the  military  commanders  of  the  two  nations  on 
each  side  of  the  Rio  Grande,  under  the  instructions  of  their  respective 
Governments,  raids  and  depredations  have  greatly  decreased,  and,  in 
the  localities  where  formerly  most  destructive,  have  now  almost  wholly 
ceased.  In  view  of  this  result,  I  entertain  a  confident  expectation  that 
the  prevalence  of  quiet  on  the  border  will  soon  become  so  assured  as  to 
justify  a  modification  of  the  present  orders  to  our  military  commanders 
as  to  crossing  the  border,  without  encouraging  such  disturbances  as 
would  endanger  the  peace  of  the  two  countries." 
'  President  Hayes'  Tbird  Annual  Message,  1879. 

"In  my  last  annual  message  I  expressed  the  hope  that  the  preva- 
lence of  quiet  on  the  border  between  this  country  and  Mexico  would 
soon  become  so  assured  as  to  justify  the  modification  of  the  orders,  then 
in  force,  to  our  military  commanders  in  regard  to  crossing  the  frontier, 
without  encouraging  such  disturbances  as  would  endanger  the  i)eac(i  of 
the  two  countries.  Events  moved  in  accordance  with  these  ixpecta- 
tions,  and  the  orders  were  accordingly  withdrawn,  to  the  entire  satis- 
faction of  our  own  citizens  and  the  Mexican  Government.  Subse- 
quently the  peace  of  the  border  was  again  disturbed  by  a  savage  foray, 
under  the  command  of  the  Chief  Victorio,  but,  by  the  combined  and 
harmonious  action  of  the  military  forces  of  both  countries,  his  band 
has  been  broken  up  and  substantially  destroyed." 

President  Hayes'  Fourth  Annual  Message,  1880. 

231 


^S  50e.]  INTERVENTION.  [CHAP.  III. 

"  A  recent  nj^n-euient  with  Mexico  provides  for  tlie  crossing  of  the 
frontier  by  the  armed  forces  of  either  country  in  pursuit  of  hostile  In- 
dians. In  my  message  of  last  year  I  called  attention  to  the  prevalent 
lawlessness  upon  the  borders  and  to  the  necessity  of  legislation  for  its 
suppression.     I  again  invite  the  attention  of  Congress  to  the  subject. 

"  A  partial  relief  from  these  mischiefs  has  been  sought  in  a  conven- 
tion, which  now  awaits  the  approval  of  the  Senate,  as  does  also  another 
touching  the  establishment  of  the  International  boundary  between  the 
United  States  and  Mexico.  If  the  latter  is  ratified,  the  action  of  Con- 
gress will  be  required  for  establishing  suitable  commissions  of  survey. 
The  boundary  dispute  between  Mexico  and  Guatemala,  which  led  this 
Government  to  i)roffer  its  friendly  counsels  to  both  parties,  has  been 
amicably  settled." 

President  Arthur's  Second  Annual  Message,  1882. 

"  The  provisions  for  the  reciprocal  crossing  of  the  frontier  bj'  the 
troops  in  pursuit  of  hostile  Indians  have  been  prolonged  for  another 
year.  The  operations  of  the  forces  of  both  Governments  against  these 
savages  have  been  successful,  and  several  of  their  most  dangerous 
bands  have  been  captured  or  dispersed  bj'  the  skill  and  valor  of  United 
States  and  Mexican  soldiers  fighting  in  a  common  cause." 
President's  Arthur's  Third  Annual  Message,  1883. 

"  The  first  duty  of  a  Government  is  to  protect  life  and  property.  This 
is  a  paramount  obligation.  For  this  governments  are  instituted,  and 
governments  neglecting  or  failing  to  perform  it  become  worse  than  use- 
less. This  duty  the  Government  of  the  United  States  has  determined 
to  perform  to  the  extent  of  its  power  toward  its  citizens  on  the  border. 
It  is  not  solicitous,  it  never  has  been,  about  the  methods  or  ways  in 
which  that  protection  shall  be  accomplished,  whether  by  formal  treaty 
stipulation  or  by  informal  convention ;  whether  by  the  action  of  judicial 
tribunals  or  that  of  military  forces.  Protection  in  fact  to  American 
lives  and  property  is  the  sole  point  upon  which  the  United  States  are 
tenacious.  In  securing  it  they  have  a  right  to  ask  the  co-operation  of 
their  sister  Kei)ubli(!.  So  far,  the  authorities  of  Mexico,  military  and 
civil,  in  the  vicinity  of  the  border,  appear  not  only  to  take  no  steps  to 
effectively  check  the  raids  or  imnish  the  raiders,  but  demur  and  object 
to  steps  taken  by  the  United  States. 

"  I  am  not  unmindful  of  the  fact  that,  as  you  have  repeatedly  reported, 
there  is  reason  to  believe  that  the  Mexican  Government  really  desires 
to  check  these  disorders.  According  to  the  views  you  have  presented, 
its  statesmj'u  are  believed  to  be  sagacious  and  patriotic,  and  well  dis- 
posed to  comply  with  all  international  obligation-s.  But,  as  you  repre- 
sent, they  encounter,  or  apprehend  that  they  may  encounter,  a  hostile 
public  feeling  adverse  to  the  United  States,  especially  in  these  border 
232 

t 


CHAP.  III.]  BORDER    RAIDERS.  [§  50e. 

localities,  tliwartiug  their  best  intentions  and  efltoits.  It  is  greatly  to 
be  regretted  tliut  such  a  state  of  perverted  public  feeling  should  exist. 
But  its  existence  does  not  exonerate  the  Mexican  Government  from  any 
obligation  under  international  law.  Still  less  does  it  relieve  this  Gov- 
ernment from  its  duties  to  guard  the  welfare  of  the  American  peoi)le. 
The  United  States  Government  cannot  allow  marauding  bands  to  es- 
tablish themselves  upon  its  borders  with  liberty  to  invade  and  plunder 
United  States  territory  with  impunity,  and  then,  when  pursued,  to  take 
refuge  across  the  Eio  Grande  under  protection  of  the  plea  of  the  integ- 
rity of  the  soil  of  the  Mexican  Eepublic." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  August  13,  1878;  MSS.  Inst.,  Mexico; 

For.  Rel.,  1878. 
See,  farther,  Mr.  Evarts  to  Mr.  Morgan,  Jnne  26,  1880 ;  to  Mr.  Navarro,  July  27, 

1880,  Oct.  6, 1880;  Mr.  Frelinghuysen  to  Mr.  Morgan,  June  6,  1882;  to  Mr. 

Romero,  July  6,  1882;  Mr.  Davis  to  Mr.  Romero,  May  7,  1883. 

An  incursion  into  the  territory  of  Mexico  for  the  puri)ose  of  dispersing 
a  band  of  Indian  marauders  is,  if  necessary,  not  a  violation  of  the  la^w 
of  nations. 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Belknap,  Jan.  22,  1874;  MSS.  Dom.  Let.  See  Mr. 
Fish  to  Mr.  Belknap,  Aug.  21,  1874. 

As  to  right  of  passage  of  troops  through  foreign  country,  see  supra,  ^§  18,  19. 

As  to  treaties  for  troops  to  cross  border  in  pursuit,  see  supra,  $  18. 

In  2  Dix's  Life,  pp.  110  ff.,  it  is  maintained  that  the  United  States  would  be 
justified  in  crossing  the  Canada  border  in  order  to  arrest  Canadian  maraud- 
ers whom  the  Canadian  authorities  neglected  or  refused  to  repress. 

The  following  orders  bear  on  this  question  : 

Headquarters  Depautmext  of  the  East, 

Ken-  York  City,  Decemhcr  14,  1864. 

General  Orders  No.  97. 

Information  having  been  received  at  these  headquarters  That  the  rebel  marauders  who 
were  (juiltij  of  murdfr  and  rohberi/ at  Saint  Albans  have  been  discharged  from  arrest,  and 
that  other  enterprises  of  a  like  character  are  actualhj  in  preparation  in  Canada,  the  Com- 
manding  General  deems  it  due  to  the  people  of  the  frontier  towns  to  adopt  the  most 
prompt  and  eflScient  measui'es  for  the  security  of  their  lives  and  property. 

All  military  commanders  on  the  frontiers  are  therefore  instructed,  in  case  further 
acts  of  depredation  and  murder  are  attempted,  whether  by  marauders  or  persons  act- 
ing imder  commissions  from  the  rebel  authorities  at  Richmond,  to  shoot  down  the  per- 
petrators, if  possible,  while  in  the  commission  of  their  crimes ;  or,  if  it  be  necessary, 
ioith  a  view  to  their  capture,  to  cross  the  boundary  between  the  United  States  and  Canada, 
said  commanders  are  hereby  directed  to  pursue  them  wherever  they  may  take  refuge,  and  if 
captured  they  are  nnder  no  circumstances  to  be  surrendered,  but  are  to  be  sent  to  these  head- 
quarters for  trial  and  i)unishment  by  nrartial  law. 

The  major-general  commanding  the  department  v/ill  not  hesitate  to  exercise  to  the 
fullest  extent  the  authority  he  possesses,  under  the  rules  of  law  recognized  by  all  civ- 
ilized states,  in  regard  to  persons  organizing  hostile  expeditions  within  neutral  terri- 
tory and  fleeing  to  it  for  an  asylum  after  committing  acts  of  depredation  within  our 
own,  such  an  exercise  of  authority  having  become  indispensable  to  j)rotect  our  cities 
and  towns  from  incendiarism  and  our  jieople  from  robbery  and  murder. 

238 


y\  f)  1 .  J  INTERVENTION.  [cHAP.  III. 

It  i.s  oaruostly  liopfd  tlial  tlio  inh;ibit;iutb  of  our  frontier  districts  will  abstaiu  from 
ill!  acts  of  retaliation  on  account  of  the  outrages  committetl  by  rebel  marauders,  and 
that  the  proper  measures  of  redress  will  be  left  to  the  action  of  the  public  authorities. 
Bv  command  of  Major-General  Dix. 

D.  T.  VAN  BUREN, 
Colonel  and  Assistant  Adjutant-General. 

Official. 

Wright  Rives,  Aid-dc-Camp. 

Headquauters  Department  of  the  East, 

Netv  York  City,  December  17,  18G4. 

General  Orders  No.  100. 

The  Bresident  of  the  United  States  having  disapproved  of  that  portion  of  Depart- 
ment General  Orders  No.  1)7,  current  series,  which  instructs  all  military  commanders 
on  the  frontier,  in  certain  cases  therein  specified,  to  cross  the  boundary  line  between 
the  United  States  and  Canada,  and  directs  pursuit  into  neutral  territory,  the  said  in- 
struction is  hereby  revoked. 

In  case,  therefore,  of  any  future  marauding  expedition  into  our  territory  from 
Canada,  military  commanders  on  the  frontiers  will  report  to  these  headquarters  for 
orders  before  crossing  the  boundary  line  in  pursuit  of  the  guilty  parties. 
By  command  of  Major-General  Dix. 

D.  T.  VAN  BUREN, 
Colonel  and  Aftsistant  Adjutant-General. 
Official. 

G.  vox  Erikstedt,  AUl-de-Camp. 

See  Bernard's  Neutrality  of  Gr.  Brit.,  185,  where  the  above  orders  are  noticed. 
(7)    EXPLOKATIONS   IN   BARBAROUS  LANDS  (C.  J/.,  THE   CONGO). 

§  51. 

"The  instructious  of  tbis  Government  governing  yonr  course  in  that 
conference  are  very  brief.  Without  more  definite  knowledge  of  the 
points  to  be  brought  before  that  conference  for  discussion,  and  of  the 
extent  to  which  it  may  feel  called  upon  to  take  cognizance  of  existing 
questions  of  territorial  jurisdiction  on  the  west  coast  of  Africa,  and  es- 
ix'cially  at  the  mouth  of  the  Congo,  much  must  be  left  to  your  discre- 
tion. The  subject  is  one  with  which  you  became  familiar  before  your 
departure  for  your  ])reseiit  i)ost,  in  connection  with  the  action  of  Con- 
gres.s  and  the  declaration  of  the  Executive  of  the  United  States  looking 
to  a  free  participation  in  the  trade  and  intercourse  of  that  newly -opened 
country  by  the  \e.ssels  and  citizens  of  the  United  States.  You  are 
aware  that  it  is  not  our  jtolicy  to  intervene  in  the  affairs  of  foreign  na- 
tions to  decide  lerritonal  questions  between  them.  It  is  not,  however, 
understood  from  the  tenor  of  the  German  invitation  that  any  such  de- 
cisive attitude  is  likely  to  be  assumed  by  the  conference,  and  beyond 
t;ikingcogni/.:inceof  such  matters  of  fact  in  relation  to  territorial  juris- 
diction in  that  region,  as  may  be  brought  before  it  to  aid  in  an  intelli- 
234 


CHAP.  III.]  EXPLORATIONS  :    THE    CONGO.  [§  ^  ^  • 

gent  discussicu  of  the  three  points  embraced  iu  the  German  note  of  in- 
vitation, it  is  not  seen  that  the  conference  can  take  upon  itself  any 
greater  power  of  intervention  or  control  than  could  properly  be  assumed 
by  the  individual  nations  represented  thereat." 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Kassou,  Oct.  17,  1884:  MSS.  Inst., 
Germany. 

"  The  rich  and  populous  valley  of  the  Congo  is  being  opened  to  com- 
merce by  a  society  called  the  International  African  Association,  of  which 
the  King  of  the  Belgians  is  the  president  and  a  citizen  of  the  United 
States  the  chief  executive  officer.  Large  tracts  of  territory  have  been 
ceded  to  the  association  by  native  chiefs,  roads  have  been  opened,  steam- 
boats placed  on  the  river,  and  the  nuclei  of  states  established  at  twenty- 
two  stations  under  one  flag,  which  offers  freedom  to  commerce  and  pro- 
hibits the  slave  trade.  The  objects  of  the  society  are  philanthropic. 
It  does  not  aim  at  permanent  political  control,  but  seeks  the  neutralitj^ 
of  the  valley.  The  United  States  cannot  be  indifferent  to  this  work,  nor 
to  the  interests  of  their  citizens  involved  in  it.  It  may  become  advis- 
able for  us  to  co-operate  with  other  commercial  powers  in  promoting  the 
rights  of  trade  and  residence  in  the  Congo  Valley  free  from  the  inter- 
ference or  political  control  of  any  one  nation." 
President  Arthur's  Third  Annual  Message,  1883. 

"  The  Independent  State  of  Congo  has  been  organized  as  a  Govern- 
ment, under  the  sovereignty  of  His  Majesty  the  King  of  the  Belgians, 
who  assumes  its  chief  magistracy  iu  his  ijersonal  character  only,  with- 
out making  a  new  state  dependency  of  Belgium.  It  is  fortunate  that  a 
benighted  region,  owing  all  it  has  of  quickening  civilization  to  the  benef- 
icence and  philanthropic 'spirit  of  this  monarch,  should  have  the  ad- 
vatitage  and  security  of  his  benevolent  supervision. 

"  The  action  4:aken  by  this  Government  last  year  in  being  the  first  to 
recognize  the  flag  of  the  International  Association  of  the  Congo  has 
been  followed  by  forjnal  recognition  of  the  new  nationality  which  suc- 
ceeds to  its  sovereign  powers. 

"A  conference  of  delegates  of  the  principal  commercial  nations  was 
held  at  Berlin  last  winter  to  discuss  methods  whereby  the  Congo  Basin 
might  be  kept  open  to  the  world's  trade.  Delegates  attended  on  behalf 
of  the  United  States  on  the  understanding  that  their  i)art  should  be 
merely  deliberative,  without  imparting  to  the  results  any  binding  char- 
acter, so  far  as  the  United  States  was  concerned.  This  reserve  was  due 
to  the  indisposition  of  this  Government  to  share  in  any  disposal  by  an 
international  congress  of  jurisdictional  questions  in  remote  foreign  ter- 
ritories. The  results  of  the  conference  were  embodied  in  a  formal  act 
of  the  nature  of  an  international  convention,  which  laid  down  certain 
obligations  purporting  to  be  binding  on  the  signatories,  subject  to  rati- 

235 


.^  51.]  intp:rvention.  [chap.  hi. 

lifatioii  wit  hill  one  year.  Notwitlistandiug  the  reservaliou  under  which 
the  (lek'uatos  of  the  United  States  attended,  their  signatures  were  at- 
tached to  the  general  act  iu  the  same  manner  as  those  of  the  plenipo- 
tentiaries of  other  Governments,  thus  making-  the  United  States  appear, 
without  reserve  or  qualification,  as  signatories  to  a  joint  international 
engagement  imposing  on  the  signers  the  conservation  of  the  territorial 
integrity  of  distant  regions  where  we  have  no  established  interests  or 
control. 

'•  This  Government  does  not,  however,  regard  its  reservation  of  liberty 
of  action  in  the  premises  as  at  all  impaired ;  and  holding  that  an  engage- 
ment to  share  in  the  obligation  of  enforcing  neutrality  in  the  remote 
valley  of  the  Congo  would  be  an  alliance  whose  ^-esponsibilities  we  are 
not  in  a  position  to  assume,  I  abstain  from  asking  the  sanction  of  the 
Senate  to  that  general  act, 

"  The  correspondence  will  be  laid  before  jou,  and  the  instructive  and 
interesting  report  of  the  agent  sent  by  this  Government  to  the  Congo 
country,  and  his  recommendations  for  the  establishment  of  commer- 
cial agencies  on  the  African  coast,  are  also  submitted  for  your  con- 
sideration." 

President  Cleveland's  First  Annnal  Message,  1885. 

"As  you  are  aware,  the  Government  of  the  United  States,  in  authoriz- 
ing the  attendance  of  Mr.  Kasson  as  a  delegate  to  the  conference  of 
Berlin,  and  of  Mr.  Sandford  as  an  associate  delegate,  did  so  under  ex- 
pressed reservations,  among  which  was  the  understanding  that  those 
gentlemen  were  without  plenipotentiary  powers,  and  that  this  Govern- 
ment, in  its  sovereign  discretion,  reserved  wholly  the  right  thereafter 
to  accede  or  withhold  its  accession  to  the  resiUts  of  that  conference. 

"  It  a])pcars,  however,  that  their  signatures  were  attached  to  the  gen- 
eral act  in  the  same  manner  as  those  of  the  plenii)otentjaries  of  other 
Governments,  and  that  the  United  States  are  thus  made  to  appear  as 
signatories  to  a  general  international  treaty,  imposing  on  the  signatories 
a  common  duty  in  respect  of  the  conservation  of  the  territorial  integrity 
and  neutrality  of  distant  regions  where  this  Government  has  no  estab- 
lished interests  or  control  of  any  kind. 

"This  Government  does  not,  however,  regard  its  prior  and  entire  res- 
ervation of  liberty  of  action  in  the  premises  as  at  all  thereby  impaired. 
And  until  the  United  States  shall,  by  subsequent  accession  and  ratifica- 
tion of  the  general  act  of  the  conference  of  Berlin  in  the  manner  therein 
])rovided.  and  according  to  their  constitutional  forms,  become  a  party 
to  the  stipulations  thereof,  it  will  be  impossible  to  determine  the  due 
and  i>ruper  weight  to  be  given  by  this  Government  to  the  declaration 
and  claim  which  is  thus  communicated  by  Mr.  van  Eetvelde  on  behalf 
of  the  Independent  State  of  the  Congo.  But  this  reservation  is  wholly 
distinct  from  the  recognition  of  the  sovereign  status  of  the  Independent 
236 


CHAP.  III.]  POLITICAL    OFFENDERS.  [§  52. 

State  of  the  Congo,  which  does  not  rest  upon  the  conventional  arrange- 
ments contemplated  by  the  conference  of  Berlin." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Tree,  Sept.  11,  1885;  MSS.  lust.,  Belg.;  For. 

Rel.,  1885. 
For  corresijoudence  on  this  topic  see  For.  Rel.,  1885,  o7  ff. 
As  to  agency  to  tlie  Congo,  see  Mr.  Frelinghuyseu  to  Mr.  Tisdel,  Sept.  8,  1884 ; 

MSS.  Notes,  Special  Missions. 
See  discussion  of  the  Congo  question  in  review  by  M.  de  Martens;  Revue  de 

Droit  Int.,  18-6,113. 

"  The  President  having  deemed  it  inexpedient  to  submit  the  general 
act  of  the  Berlin  [Congo]  Conference  to  the  Senate  with  a  view  to  ob- 
tain the  constitutional  concurrence  of  that  body,  and  having  announced 
his  views  thereon  in  liis  annual  message  of  the  8th  of  December  last  (of 
which  I  inclose  copies  for  your  convenient  information),  I  am  unpre- 
pared to  ask,  through  the  United  States  minister  at  Berlin,  as  your  note 
suggests,  that  the  term  for  the  exchange  of  ratifications  be  kept  open 
in  favor  of  the  United  States.  Nor  am  I  at  present  prepared  to  make 
such  announcement  to  your  Government  as  might  be  construed  to  be  a 
formal  and  final  rejection  of  the  general  act  by  the  United  States." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  von  Alvensleben,  April  16,  1886;  MSS.  Notes, 
Germany. 

(8)  Intercession  in   extreme   cases  of   political  offenders. 

§52. 

On  March  15,  1793,  Mr.  Jefferson,  Secretary  of  State,  instructed  Mr. 
Gouverneur  Morris,  minister  to  France,  to  say,  whenever  it  would  be  ef- 
fectual, to  any  foreign  Government  by  whom  General  La  Fayette  might 
beheld  in  custody,  "  that  our  Government  and  nation,  faithful  in  their 
attachments  to  this  gentleman  for  the  services  he  has  rendered  them, 
feel  a  lively  interest  in  his  welfare,  and  will  view  his  liberation  as  a 
mark  of  consideration  and  friendship  for  the  United  States,  and  as  a 
new  motive  for  esteem  and  a  reciprocation  of  kind  offices  towards  the 
power  to  whom  they  shall  be  indebted  for  this  act." 

This  api)lication,  however,  was  considered  afterwards  to  be  personal 
rather  than  official. 

"  The  uniform  policy  of  this  Government  has  been  n(;t  to  interfere  in 
the  domestic  affairs  of  other  nations.  This  policy  was  wisely  estab- 
lished by  President  Washington,  who  carried  it  so  far  as  to  refuse  to 
interfere  oflBcially  for  the  release  of  La  Fayette,  his  friend  and  compan- 
ion in  arms,  who  was  incarcerated  for  many  years  in  the  prison  at  Ol- 
miitz." 

Mr.  Crittenden,  Acting  Sec.  of  State,  to  Mr.  Pruyn,  Oct.  8,  1851 ;  MSS.  Dom. 
Let. 

The  Government  of  the  United  States  will,  through  the  Secretary 
of  State,  interpose  its  good  offices  for  the  alleviation  of  the  jjunishment 

237 


§  52.]  INTERVENTION.  [CHAP.  III. 

of  citizens  of  the  Unite.d  States  convicted  in  a  foreign  country  of  polit- 
iial  otlenses  against  such  country. 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Cushiug,  Aug.  27,  1842;  MSS.  Dom.  Let. 

Th(3  laws  of  Turkey  "  whereby  the  i>eualty  of  death   is   denounced" 
against  the  Mussulman  who  embraces  Christianity,"  however  outra- 
geous, do  not  justify  an  appeal  from  this  Government  for  their  repeal. 

'  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Spenee,  Dec.  28, 1855  ;  MSS.  Inst.,  Turkey. 

Xo  intercession  will  be  offered  when  it  involves  an  impeachment  of 
the  character  of  the  Government  addressed.  Hence,  in  Decembers, 
1858,  the  Department  declined  to  address  the  Papal  Government  in 
reference  to  certain  acts  of  alleged  cruelty  permitted  in  Bologna. 

Mr.   Cass,  Sec.  of  State,  to  Mr.  Hart,  Dec.  8,  1858 ;  MSS.  Dom.  Let. 

The  same  position  was  taken  by  Mr.  Cass  on  Jan.  4,  1859,  in  declining  to  inter- 
vene in  behalf  of  the  "  Mortara  boy,"  alleged  to  have  been  abducted  and 
forcibly  baptized  by  Papal  authorities. 

"The  capture  of  the  Prince  Maximilian  in  Queretaro  by  the  republi 
can  armies  of  Mexico  seems  probable.  The  reported  severity  i)racticed 
on  the  prisoners  taken  at  Zacatecas  excites  apprehension  that  similar 
severity  may  be  practiced  in  the  case  of  the  prince  and  his  alien  troops. 
Such  severities  would  be  injurious  to  the  national  cause  of  Mexico  and 
to  the  republican  system  throughout  the  world. 

"You  will  communicate  to  President  Juarez  promptly,  and  by  effect- 
ual means,  the  desire  of  this  Government,  that  in  case  of  capture  the 
l)rince  and  his  su])porters  may  receive  the  humane  treatment  accorded 
by  civilized  nations  to  prisoners  of  war." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Campbell,  Apr.  (5,  1867  j  MSS.  Inst.,  Mexico. 

"  The  judgment  of  mankind  is  that  in  revolutionary  movements  which 
are  carried  on  by  large  masses,  and  which  appeal  to  popular  sympathy, 
capital  executions  of  individuals  who  fall  within  the  power  of  the  Gov- 
ernment are  unwise  and  often  unjust.  Such  severity,  when  practiced 
upon  a  citizen  of  a  foreign  state,  excites  a  new  sympathy  by  enlisting 
feelings  of  nationality  and  patriotism. 

"  The  fellow-citizens  at  home  of  the  sufferer  in  a  foreign  country  nat- 
urally incline  to  believe  that  the  just  and  generous  principle  to  which 
I  have  referred  is  violated  in  his  case.  The  soundness  of  this  principle 
is  quite  easily  understood  after  the  revolutionary  movement  is  ended, 
although  it  is  difficult  to  accept  the  truth  in  the  midst  of  revolutionary 
terror  or  violence.  When  the  President  of  the  United  States  dismissed 
the  pro.^ecutions  in  the  United  States  courts  of  the  so-called  Fenians 
who  attempted  an  unlawful  and  forbidden  invasion  of  Canada,  and  re- 
turned them  to  their  homes  at  the  expense  of  the  Government,  and  at 
the  same  time  obtained,  through  the  wise  counsels  of  Sir  Frederick 
Bruce  and  the  Governor-General  of  Canada,  a  mitigation  of  the  capital 
punishments  adjudged  against  those  who  were  convicted  in  the  Cana- 
238 


CHAP.  III.]  POLITICAL    OFFENDEPtS.  [§  52. 

diau  courts,  the  President  adopted  proceedings  which  have  practically 
assured  the  continuauoe  of  peace  upon  the  Canadian  border.  It  was 
believed  here  that  similar  clemency  could  be  practiced  in  the  Manches- 
ter case  with  benign  results.  Your  dispatch  leads  us  to  believe  that 
Her  Majesty's  Government  was  so  thoroughly  convinced  of  the  neces- 
sity of  pursuing  a  difi'erent  course  in  that  case  that  further  interposition 
than  that  which  you  adopted  would  have  been  unavailing  and  injurious 
to  citizens  of  the  United  States.  Certainly  it  belonged  to  the  British 
Government  to  decide  whether  the  principle  which  we  invoked  could  be 
wisely  applied  in  the  Manchester  case." 

Mr.   Seward,  Sec.  of  State,  to    Mr.  Adams,  Dec.  9,  18G7 ;    MSS.  lust.,  Great 
Britain. 

"Although  this  [a  proclamation  by  the  Governor- General  of  Cuba, 
threatening  death  to  insurgents  taken  prisoners  with  arms  in  their 
hands]  is  a  measure  touching  the  internal  affairs  of  a  country  which  is 
within  the  exclusive  jurisdiction  of  the  Government  of  that  country,  it 
seems  to  be  of  a  character  so  inhuman  and  so  much  at  variance  with 
the  practice  of  Christian  and  civilized  states  in  modern  times  under 
similar  circumstances,  that  this  Government  regards  it  as  its  duty 
merely  as  a  friend  of  Spain,  to  protest  and  remonstrate  against  the  car- 
rying it  into  effect." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Roberts,  Jan.  8,  1872;  MSS.  Notes,  Spain. 

For  Mr.  Webster's  letter  of  intercession  for  parties  taken  on  Lopes  expedition, 

see  G  Webster's  Works,  515,  and  see  Sen.  Ex.  Doc.  No.  41,  31st  Cong.,  2d 

sess. ;  House  Ex.  Doc.  No.  2,  32d  Cong.,  1st  sess. ;  id.,  Ex.  Doc.  No.  16. 
As  to  iuterpositionof  theUuited  States  in  1831,  bringing  Hungarian  exiles  from 

Turkey  to  the  United  States  in  a  national  ship,  see  supra,  §  48  ;  2  Curtis's  Life 

of  Webster,  560-'l. 
As  to  interposition  with  the  British  Government  in  favor  of  certain  Fenian 

prisoners  captured  in  Canada,  see  Mr.  Seward,  Re])ort  to  the  President,  July 

26,  1866 ;  MSS.  Report  Book  No.  9.     (See  also  House  Ex.  Doc.  No.  154,  39th 

Cong.,  1st  sess.) 
For  the  application  of  Mr.  Fish,  Sec.  of  State,  to  the  Spanish  Government  for 

the  release  of  Santa  Rosa,  in  1872,  see  Mr.  Fish  to  Admiral  Polo,  Dec.  17, 

1872 ;  MSS.  Notes,  Spain ;  For.  Rel.,  1873. 

"Mr.  Frelinghuysen  informed  Mr.  Lowell  of  the  action  of  the  House 
of  Representatives,  as  contained  in  the  resolution  of  December  10,  re- 
peated his  former  instruction  to  consider  the  citizenship  of  O'Donnell 
established,  and  concluded  bj^  saying: 

"  'There  being  in  Great  Britain  no  judicial  examination  on  appeal  of 
the  proceedings  at  a  criminal  trial,  jiossible  errors  can  only  be  corrected 
through  a  new  trial  or  by  executive  action  upon  the  sentence.  There- 
fore this  Government  is  anxious  that  such  careful  examination  be  given 
to  the  proceedings  in  this  case  as  to  discover  error,  should  one  have 
been  committed.  You  are  therefore  directed  by  the  President  to  re- 
quest a  delay  of  the  execution  of  the  sentence,  and  that  a  careful  exam- 

239 


^  53.]  INTERVENTION.  [CHAP.  III. 

illation  of  tliecase  be  made  by  Her  Majesty's  Government,  and  that  tbe 
prisoner's  counsel  be  permitted  to  present  any  alleged  points  of  error.'" 

Telegram,  Mr.  Frelinglinyseii,  Sec.  of  State,  to  Mr.  Lowell,  Dec.  11,  18R3  ;  MSS. 

lust.,  Gr.  Brit. ;  For.  Kel.,  1883. 
As  to  joint  resolutiou  of  Congress  for  iutercessiou  in  Condon's  case,  see  ivfra, 

$  230. 

(0)  International  courts  in  semicivilized  or  barbarous  lands. 

§53. 

This  subject,  so  far  as  concerns  the  action  of  consular  courts,  is 
hereafter  considered.    Infra,  §  125. 

"I  have  the  honor  to  acknowledge  the  receipt  of  Sir  Edward  Thorn- 
ton's note  of  the  12th  ultimo,  in  relation  to  the  proposed  commission 
of  liquidation  for  the  settlement  of  the  Egyptian  debts,  which  has  re- 
sulted from  the  negotiations  carried  on  for  some  time  between  the  Gov- 
ernments of  Great  Britain,  Austria-Hungary,  France,  Germany,  and 
Italy,  and  have  given  the  most  considerate  attention  to  the  statements 
therein  presented  respecting  the  Khedival  decree  of  March  31  last,  and 
tbe  declaration  of  the  same  date  signed  by  the  representatives  of  the 
five  powers  above  mentioned,  of  which  documents  you  kindly  furnish 
me  with  copies. 

"It  appears  from  those  documents,  taken  conjointly  with  your  state- 
ments, that  the  live  powers,  whose  subjects  own  nearly  the  whole  of  the 
Egyptian  debt,  have  organized  among  themselves  a  commission  of  liqui- 
dation for  the  benefit  of  the  creditors,  whether  large  or  small,  whose  in- 
terests are  confided  to  its  prudence ;  that  the  same  powers  have  united 
in  a  declaration  to  the  end  of  giving  force  of  law  to  the  decisions  which 
the  commission  sliall  have  arrived  at;  that  the  five  Cabinets  are  desirous 
that  the  decisions  of  the  commission  should  hold  applicable  with  like 
force  to  creditors  belonging  to  powers  which,  while  not  represented  in 
the  i)reliminary  negotiations  tor  the  commission,  or  in  the  commission 
itself,  have  concurred  in  establishing  the  legal  administration  of  Egypt 
by  i)articipating  in  the  establishment  of  the  mixed  tribunals;  that  to 
this  end  the  adherence  of  such  powers  to  the  work  of  the  commission  is 
requested,  in  order  that  those  tribunals  may  have  unimpeded  jurisdic- 
tion over  cases  of  rescinded  contracts  and  otlier  questions  which  may 
ari.se  under  the  operations  of  the  commission;  and  that  you  are  in- 
structed by  your  Government  to  ask  the  formal  adhesion  of  that  of  the 
United  States  to  the  joint  declaration  referred  to.  Hence  you  ask  that 
I  will  acquaint  you,  so  soon  as  it  may  be  in  my  power,  with  the  views 
of  this  Government  upon  the  subject. 

'•The  important  question  to  which  the  attention  of  this  Government 
is  til  us  called  had  already  had  careful  consideration,  based  upon  the  ap- 
lication  ilirectly  made  to  it  by  that  of  His  Highness  the  Khedive  through 


CHAP.  III.]  INTERNATIONAL    COURTS.  [§53, 

the  United  States  agent  at  Cairo,  and  also  upon  the  approaches  made 
to  it  by  that  of  France  in  the  sense  of  obtaining  the  adhesion  of  the 
D  nited  States  to  the  .scheme.  The  first  results  of  that  consideration  were 
not,  on  the  whole,  favorable  to  the  concurrence  of  the  United  States  in 
the  proposal  of  the  foreign  powers,  and  the  expressed  opinion  of  the 
Department  was  that  the  United  States  Government  did  not  feel  called 
upon  to  accept,  in  advance,  as  binding  upon  its  citizens,  the  action  of  a 
commission  in  the  organization  of  which  neither  it  nor  they  had  had  any 
part.  Although,  so  far  as  was  known,  the  interests  of  American  citi- 
zens concerned  in  contracts  and  like  engagements  with  the  Egyptian 
Government  were  not  so  numerous  or  important  as  to  make  participa- 
tion in  the  organization  of  the  commission  an  indispensable  requisite, 
yet  it  was  regarded  as  proper  to  leave  undecided,  for  the  time  being  at 
least,  the  question  of  the  acceptability  of  such  action  as  that  commis- 
sion might  hereafter  take  so  far  as  concerned  its  operation  npon  the 
rights  of  citizens  of  the  United  States,  and  this  view  was  strengthened 
by  the  natural  desire  of  the  United  States  to  take  no  action  which,  on 
the  one  hand,  might  be  tantamount  to  enforcing  its  own  procedure  and 
remedies,  in  conjunction  with  other  powers,  upon  the  Khedival  Gov- 
ernment in  matters  of  its  own  internal  economy,  and,  on  the  other, 
might  forego  the  reservation  of  the  rights  of  United  States  citizens  in 
their  direct  relations  to  the  Egyptian  Government,  in  case  the  dispar- 
agement of  such  rights  should  call  for  diplomatic  representations  in 
their  defense. 

"In  leaning  to  the  adoption  of  such  a  course  on  the  part  of  the  United 
States,  it  vras,  however,  entirely  foreign  to  the  purposes  of  this  Gov- 
ernment to  interfere  with,  or  embarrass  in  any  way,  the  financial  rela- 
tions of  the  Khedive  toward  the  other  powers,  or  the  adjustment,  by 
whatever  means  it  and  they  might  determine,  of  such  obligations  as 
might  have  arisen  and  become  matters  of  dispute  or  compromise  be- 
tween them.  It  was  not  perceived  that  the  attitude  of  discreet  re- 
serve, which  thus  so  properly  commended  itself  to  this  Government  in 
respect  of  a  matter  wherein  it,  as  a  Government,  had  no  dii'ect  con- 
cern, and  w^herein  the  interests  of  its  citizens  were  amply  guarded  by 
the  direct  relations  it  maintain;s  so  happily  with  the  Government  of  the 
Khedive,  could  be  regarded  as  interfering  with  the  entire  freedom  of 
that  Government  to  make  any  administrative  adjustment  of  its  finan- 
cial relations  with  Governments  having  re[)resentation  in  such  admin- 
istration. 

"While  holding  these  views,  therefore,  and  expressing  them  frankly 
through  the  medium  of  its  diplomatic  representation  at  Cairo,  the  Gov- 
ernment of  the  United  States  held  itself  ready  to  receive  and  consider 
in  the  most  friendly  s[)irit  any  indications  which  the  Khedive's  Govern- 
ment might  present  of  embarrassment  caused  to  it  on  this  account. 

"Matters  being  in  this  state,  advices  from  the  representative  of  the 
United  States  at  Cairo  were  received,  exhibiting  the  apparent  interest 

S.  Mis.  102— VOL.  I IG  241 


^  54.]  INTERVENTION.  [CIIAP.  III. 

of  the  Egyptian  Governmeut  itself  in  the  .solutions  reacbed  by  the  com 
mi.ssiou  of  liquidation,  and  soliciting;  in  the  most  unequivocal  and  earn- 
est manner  the  concurrence  of  the  United  States  in  order  to  remove  the 
embarrassments  which  it  was  represented  would  tlow  from  the  attempt 
on  the  part  of  the  Khedive's  Government  to  apply,  through  the  tribunals, 
the  decisions  of  the  commission  without  the  adhesion  of  the  powers 
represented  in  the  organization  of  those  tribunals;  and  these  consid- 
erations induced  this  Government  to  waive  its  reserve  and  accord  its 
adhesion  to  the  administrative  plan  upon  which  the  Governmeut  of  His 
Highness  the  Khedive  seemed  to  put  so  much  value. 

"  The  diplomatic  agent  of  the  United  States  at  Cairo  was  accordingly 
in.structed,  on  the  17th  instant,  by  telegraph,  to  give  the  adhesion  of 
this  Government,  if  that  of  Egypt  regarded  it  as  material  to  the  scheme, 
and  I  am  since  in  receipt  of  advices  that  he  has  done  so." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Druraniond,  July  :?0,  18S0 :  MSS.  Notes,  Gr. 
Brir.;  For.  Kel.,  1880. 

A  similar  oommuDication  was  addressed,  the  same  day,  to  the  representatives 
of  Austria-Hungary,  France,  Germany,  and  Italy. 

As  to  institution  of  international  courts  in  Egypt,  see  Mr.  Seward,  Sec   of  State, 
to  Mr.  Adams,  April  13,  18b8  :  MSS.  Inst.,  Great  Britain. 

(10)  Good  offices  foe  missionaeies  abeo.\d. 
§  54. 

* 

Missionaries  sent  out  by  religious  communions  in  the  United  States 
to  ^Ichammedan  or  pagan  lands  '•  are  entitled  to  all  the  protection  which 
the  law  of  nations  allows  the  Government  to  extend  to  citizens  who  re- 
side in  ioreign  countries  in  the  pursuit  of  their  lawful  avocations,  but  it 
would  be  a  source  of  endless  embarrassment  to  attempt  to  reverse  the 
decisions  of  regular  tribunals"  when  such  missionaries  are  condemned 
for  teaching  doctrines  not  tolerated  by  the  secular  power,  in  cases  where 
there  is  no  treaty  guarantee  for  their  toleration. 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Marsh,  Fel).  .'),  1853;  MSS.  In.st.,  Turkey. 

The  Government    of  the  United  States,  while  protecting  citizens  of 
the  United  States  in  Turkey  so  far  as  concerns  their  international  rights, 
cannot  in  any  way  assume  a  protectorship  of  Christian  communions  in 
Turkey,  as  is  done  by  some  European  powers,  nor  in  any  way  under 
take  to  <letermine  their  dissensions. 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Williams,  Oct.  22,  1S60;  MSS.  Inst.,  Turkey. 

"  It  is  a  matter  of  regret  that  the  Christian  missionaries  of  the  United 
States  and  of  Hawaii  to  the  Micronesian  group  should  have  experienced 
any  ob.stacle  in  the  prosecution  of  their  calling,  and  especially  that  they 
should  have  been  wronged  in  their  person  and  property  by  the  savage 
aborigines.  It  is  ho])ed  that  the  ve.ssel  of  war  which,  it  is  understood, 
has  been  ordered  thither,  will  have  the  effect  of  preventing  any  further 
343 


CHAP.  111. J  GOOD    OFFICES    FOR    MISSIONARIES.  [§  54. 

outrages  upon  our  citizens.  Our  right,  however,  to  demand  redress  for 
injuries  to  subjects  of  the  Hawaiian  Kingdom,  independent,  though  a 
friendly  state,  may  be  regarded  as  questionable.  We  should,  couse- 
queutly,  prefer  not  to  direct  an  application  to  be  made  in  their  behalf, 
notwithstanding  the  connection  between  missionaries  of  this  country 
and  those  of  Hawaii,  adverted  to  by  Mr.  Harris  in  his  note  to  you  of 
the  2Gth  February.  Still,  as  the  native  inhabitants  of  Micronesia  are 
not  understood  to  acknowledge  the  ol)ligations  of  the  Uit  of  nations,  it 
will  be  competent  for,  and  there  would  be  no  objection  to,  a  United 
States  naval  commander  interposing  in  behalf  of  any  subjects  of  the 
Hawaiian  Kingdom  to  protect  them  against  any  further  injuries  with 
which  the}'  might  be  threatened  during  his  abode  in  Micronesia." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Peirce,  Apr.  6,  1870;  MS3.  Inst.,  Hawaii. 

The  minister  of  the  United  States  at  Constantinople  may  employ  his 
good  offices  with  the  Turkish  authorities  to  obtain  for  the  Syrian  Prot- 
estant College  authority  to  grant  medical  degrees.  This  privilege,  how- 
ever, is  not  to  be  claimed  as  a  matter  of  right,  either  under  i^ublic  law 
or  treaty,  but  merely  as  a  mark  of  good- will. 

ilr.  Fish,  Sec.  of  State,  to  Mr.  Brown,  July  31,  1871 ;  MSS.  Inst.,  Turkey. 

"  I  have  received  your  dispatch  No.  28,  of  the  6th  ultimo,  inclosing 
correspondence  between  yourself  and  the  vice-consul-general  at  Beirut, 
in  regard  to  the  '  amount  of  protection,  if  any,  consuls  can  give  to  the 
teachers,  pupils,  and  natives  who  have  been  converted  through  the 
ministry  of  the  American  missionaries,  from  persecution  on  account  of 
their  religious  belief.' 

"  In  reply,  I  have  to  state  that  the  general  iwsition  and  principles 
advanced  by  you  on  the  subject  are  correct,  and  are  within  the  provis- 
ion of  the  treaty  between  the  United  States  and  Turkey,  and  your  com- 
munication to  the  vice-consul-general  is  approved." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Brown,  Dec.  5,  1871 ;  MSS.  Inst.,  Turkey  ;  For. 
Rel.,  1871. 

This  instruction  was  in  response  to  the  followiiig : 

No.  457. 

Mr.  Broun  to  Mr.  Fish. 

No.  28.]  Legatiox  oi-  tiik  United  States, 

Constantinople,  Novemher  6, 1871.     (Received  December  "2.) 

"  Sir:  I  have  the  honor  to  transmit  to  the  Department  copies  of  a  correspondence  with 
the  consulate-general  at  Beirut,  and  to  request  most  respectfully  your  instructions  on 
the  subject  to  which  it  relates. 

"  I  have  very  great  respect  for  all  of  the  American  missionaries  in  all  parts  of  this 
country,  and  many  of  them  are  personal  friends.  They  are  fully  entitled  to  all  the 
protection  which  the  legation  can  secure  for  them.  The  opinions  which  I  have  ex- 
pressed in  my  reply  to  the  vice-consul-general  are  based  upon  my  experience  and 
knowledge  of  the  feelings  of  the  Turkish  Government. 

Ihave,&c.,  JOHN  P    BROWN. 

243 


§  54.]  INTERVENTION.  [CHAP.  111. 

Mr.  Brown  to  Mr.  Hay. 

Legation  of  the  United  States, 

Constantinople,  November  4,  1871. 

Sir  :  I  have  had  the  honor  to  receive  your  dispatch  of  the  11th  October,  asking 
instructions  from  me  on  the  subject  of  the  amount  of  protection,  if  any,  consuls  may 
give  to  the  teachers,  pupils,  and  natives  who  have  been  converted  through  the  minis- 
try of  the  American  missionaries,  from  persecution  on  account  of  their  religious 
belief. 

As  I  am  not  in  jiossession  of  any  instructions  from  the  Department  of  State  on  the 
subject,  and  as  it  is  one  that  must  greatly  interest  the  missionaries  in  Syria,  I  shall 
now  transmit  to  it  a  copy  of  your  dispatch  and  of  my  reply,  for  its  consideration.  It 
is  for  the  first  time,  that  I  am  aware  of,  that  such  a  request  has  been  submitted  to  the 
legation  from  missionaries  in  any  part  of  Turkey  ;  and  I  must  regret  that  anything 
has  now  occurred  to  render  it  necessary. 

It  seems  to  me  that  much  as  the  Government  of  the  United  States  may  be  interested 
in  the  principle  of  religious  liberty  and  toleration  in  all  parts  of  the  world,  the  ques- 
tion is  one  of  so  much  delicacy,  when  it  relates  to  other  countries  and  Governments, 
as  to  prevent  its  direct  official  interference  to  sustain  it. 

By  refereuce  to  the  fifth  article  of  the  treaty,  you  will  jjerceive  that  it  has  been 
established  that  the  legation  and  consulates  of  the  United  States  shall  not  protect 
Ottoman  subjects,  either  openly  or  secretly,  &c.,  and  the  same  principle  you  will  find 
repeated  in  your  berat  or  exequatur  of  the  consul-general.  I  do  not  see  how  this  stip- 
ulation can  be  departed  from  on  the  ground  of  religious  toleration  in  this  country. 
Although  the  Ottoman  Government  tolerates  the  labors  of  missionaries  among  its  sub- 
jects, it  does  so  unwillingly,  and  is  not  disposed  to  favor  or  promote  them.  With  this 
fact  before  me  I  cannot  instruct  you  to  claim  a  right  (o  give  your  official  protection  to 
the  individuals  aforestated.  I  believe  the  local  authorities  will  not  allow  it.  The 
question  will  then  be  referred  by  them  and  yourself  here,  and  I  shall  have  invited 
upon  the  legation  a  question  of  an  untenable  nature.  The  recent  case  of  the  teacher 
of  the  Rev.  Mr.  Jessup  offers  an  evidence  of  what  I  state.  I  certainly  do  not  advise 
you  from  refraining  to  offer  your  officious  solicitations  in  behalf  of  any  clearly  estab- 
lished cases  of  religious  persecution,  be  the  sufferer  whomever  he  may,  or  whatever 
his  faith,  and  from  invoking  tlie  well-known  liberal  princij)les  of  the  Ottoman  Govern- 
ment in  such  matters  ;  but  this  should  be  done  with  much  discretion.  It  would  be 
certainly  an  error  (o  interfere  in  the  affairs  of  the  individuals  you  allude  to  discon- 
nected with  religion. 

Yon  are  misinformed  on  the  subject  of  any  "  Mussulman  who,  for  having  embraced 
Christianity,  may  be  put  to  death."  Several  years  ago  the  Sultan  officially  declared 
that  this  principli;  of  Islam  holy  law  should  never  be  practiced  ;  and  there  are  now 
some  few  Christians  hero  who  were  once  Moslems,  residing  at  the  capital,  and  in  fre- 
quent intercourse  with  the  higher  functionaries  of  the  Government.  I  am  probably 
better  acquainted  than  yourself  with  its  feelings.  I  would,  therefore,  not  encourage 
you  to  do  what,  though  very  creditable  to  your  feelings  as  a  Protestant.  I  should  not 
be  able  to  sustain  you  in. 

You  may,  however,  easily  verify  what  I  have  stated  by  putting  forward  a  claim  to 
protect  the  individuals  mentioned  in  your  dispatch. 

As  to  the  Americin  missionaries,  I,  of  course,  need  not  add  that  every  possible  means 
should  be  adopted  for  their  protection.     Their  dwellings  and  establishments  are  invio- 
late, and  will  ncv(T,  I  ])resume,  be  molested. 
I  am,  &c., 

,    ,.  JOHN  P.  BROWN. 

J.  Baldwin  Hay,  Esq., 

United  States  T'ice-Consiil-General,  Beirut. 
244 


CHAP.  III.]  GOOD    OFFICES    FOR    MISSIONARIES.  [§  54. 

Mr.  nay  to  Mr.  Drown. 

Unitkd  States  Consulatk-Genekal, 

Beirut,  October  11,  1871. 

SiK  :  I  have  the  honor  to  ackuowledgc  your  official  note,  dated  the  lUth  ultimo,  on  the 
protection  alleged  to  have  been  given  by  the  United  States  consular  agent  at  Tripoli 
to  an  employ6  of  the  Rev.  Mr.  H.  S.  Jessup.  This  is  the  first  that  1  have  heard  of  the 
affair,  and  I  have  requested  Mr.  Tauni  to  give  lue  full  particulars  of  the  case,  aud  to 
what  extent  he  has  protected  the  said  employe  ;  and  I  shall  send  you  his  report  as  soon 
as  received. 

lu  the  meanwhile  allow  me  to  request  special  instructions  respecting  the  claim  of 
American  missionaries  in  Syria  to  official  protection  in  their  vocation. 

The  American  missionary  enters  the  Ottoman  Empire  with  the  avowed  object  of 
teaching  the  Christian  religion  to  the  subjects  of  this  Empire,  not  secretly,  but  openly. 
The  Ottoman  Government,  by  reason  of  according  them  permission  to  teach  and  preach 
the  Christian  religion,  and  to  open  schools,  cannot  justly  offer  them  any  molestation 
or  hindrance  iu  pursuing  their  object,  nor  can  it  consistently  injure,  threaten,  or  per- 
secute such  of  its  subjects  as  may  embrace  the  religion  which  it  allows  the  missionaries 
to  teach.  Jf  a  Mohammedan  subject  of  Turkey  embraces  Christianity,  by  the  laws 
of  Mohammedanism  his  evidence  is  worthless,  aud  he  can  be  put  to  death  ;  but  a  recent 
decree  of  the  Sultan  proclaims  religious  toleration  throughout  the  Empire.  This  decree 
is  not  practically  enforced  in  Syria,  aud  American  missionaries  often  desire  and  expect 
consular  interpositiou  to  succor  persecuted  native  teachers  and  native  converts.  Such 
a  course  is  offensive  to  the  local  authorities,  who  are  secretly  (if  not  openly)  upheld 
in  Constantinople  by  their  superiors. 

Only  the  firm  2)ressure  of  Chrintian  nations  caused  the  Sultan  to  proclaim  religious 
liberty,  and  a  constant  pressure  is  absolutely  necessary  to  secure  this  liberty  of  con- 
science to  converts  who  desire  to  experience  its  benefit. 

Having  thus  briefly  stated  the  position  of  American  missionaries  in  Syria,  I  earnestly 

desire  instructions  as  to  how  far  they  are  to  be  protected   in  their  calling,  and  to 

what  extent,  if  any,  consuls  can  protect  their  teachers,  their  pupils,  aud  the  natives 

who  have  been  converted  by  their  ministry.     (The  word  protection  in  this  case  means 

protection  from  persecution  on  account  of  religious  belief.) 

I  am,  &c., 

•J.  BALDWIN  HAY, 

Vice-  Consul-  General. 
Hon.  Joiix  P.  Browx, 

United  Slates  Minister,  Constaiititiople. 

As  to  protection  to  be  afforded  to  missionaries  iu  China,  see  Mr.  Fish,  Sec.  of 
State,  to  Mr.  Avery,  July  30, 1875 ;  MSS.  Inst.,  China.  As  to  Chinese  toler- 
ation iu  this  respect,  see  infra,  ^^  67, 144. 

"  I  transmit  herewith  for  your  information  the  inclosed  copies  of  dis- 
patches No.  G7,  of  January  18  last,  and  No.  323,  of  the  5th  ultimo,  from 
our  consul  at  Beirut,  Syria,  and  consul-general  at  Constantinople,  in 
relation  to  the  difficulties  encountered  by  American  citizens  and  grad- 
uates of  the  American  college  at  Beirut  in  their  endeavor  to  practice 
their  i)rofession  in  the  Ottoman  Dominions. 

"  To  some  extent  the  onerous  and  unjust  discriminations  of  the  Turk- 
ish authorities  iu  respect  of  this  general  subject  are  familiar  to  your 
legation,  the  case  of  the  late  Dr.  Calhoun  being  a  recent  one  in  point. 

"  In  that  case,  where  it  was  sought  to  impose  unreasonable  restric- 
tions jn  regard  to  Dr.  Calhoun's  medical  practice,  the  Department  en- 

245 


§  54.]  INTERVENTION.  [CHAP.  III. 

deavored  to  secure  for  him  only  such  treatment  in  respect  to  his  ex- 
amination as  was  enjoyed  by  medical  practitioners,  citizens  or  sub- 
jects of  other  countries,  residing-  and  practicing  in  Turkey.  So.  too, 
in  the  present  instauce,  where  the  cases  are  practically  the  same,  we 
ask  onlj'  fair  and  impartial  treatment  for  our  citizens  who  desire  to  follow 
their  profession  in  that  country. 

"It  is  difficult  to  believe  that  the  Turkish  Government  would  know- 
ingly permit  its  local  authorities  to  so  unjustly  discriminate  against 
American  medical  practitioners.  Thijs  is  the  more  singular  and  to  be 
regretted  when  it  is  remembered  that  our  citizens  have  been  regularly 
graduated  from  the  college  at  Beirut,  a  chartered  and  trustworthy  insti- 
tution, having  authority  to  confer  such  diplomas,  and  in  view  of  the  . 
undoubted  statement  that  no  such  exactions  as  are  sought  to  be  imposed 
upon  our  citizens  are  attempted  or  enforced  against  medical  practitioners 
of  other  nationalities,  even  when  they  have  not  followed  any  prescribed 
course  of  study.  Yet  this  is  precisely  the  situation  as  represented  by 
Mr.  Robeson,  whose  strenuous  efforts  have  unfortunately  been  thus  far 
unavailing  to  stop  or  prevent  so  unjust  a  discriminatory  practice.  Xor, 
I  regret  to  add,  so  far  as  Mr.  Heap's  knowledge  goes,  have  those  which 
have  been  put  forth  by  the  legation  or  consulate-general  for  the  relief 
of  our  citizens  in  such  cases  been  hardly  more  satisfactory,  notwith- 
standing the  orders  and  promises  of  the  Turkish  Government.  The 
faculty  of  the  college  at  Beirut  now  hope  for  one  of  the  following  priv- 
ileges : 

"First.  A  charter  as  an  independent  medical  college,  with  power  to 
grant  legal  degrees  in  medicine  and  surgery. 

"Second.  The  privilege  of  granting  degrees  in  medicine  and  surgery, 
which,  to  be  legalized,  shall  be  forwarded  to  Constantinople  through 
the  American  minister  or  consulate-general,  to  be  signed  and  sealed  by 
the  Imperial  College  officials. 

"Third.  Failing  in  either  of  these,  the  appointment  of  an  examining 
board  of  Government  physicians  in  Beirut  or  Damascus,  with  power  to 
grant  a  certificate  to  the  graduates  of  the  American  college  after  they 
have  passed  a  satisfactory  examination  before  the  said  board,  which 
certificate  shall  authorize  the  holder  to  practice  medicine  anywhere  in 
the  Ottoman  Empire. 

"  These  ])ropositions  ai)pear  reasonable  and  just,  and  any  one  of  them, 
if  adopted,  would  doubtless  afibrd  a  practical  and  satisfactory  solution 
of  the  present  difficulties  surrounding  American  medical  practitioners  in 
that  country.  In  the  opinion  of  this  Government,  therefore,  the  Gov- 
ernment of  Turkey  should  be  willing  to  grant  one  or  the  other  of  these 
privileges,  and  enforce  a  compliance  of  its  orders  by  the  local  authori- 
ties throughout  the  Empire. 

"The  inclosed  correspondence  will  enable  you  to  fully  and  carefully 
present  this  subject  to  the  Government  of  the  Porte.     This  you  will 
accordingly  do,  and  endeavor  to  obtain  through  the  adoption  of  one  of 
246 


CHAr.  III.]  GOOD    OFFICES    P^OR    MISSIONARIES.  [§  54. 

.the  courses  suggested  above,  or  some  other  equally  satisfactory  method, 
recognition  of  the  competent  dii)lomas  issued  by  the  American  college 
at  Beirut  to  its  medical  graduates. 

"This  Government  is  disposed  to  admit  that  every  country  has  the 
right  to  prescribe  the  modeof  recognition  of  medical  practitioners  within 
its  borders.  While  granting  this,  it  is  only  reasonable  to  exi)ect,  there- 
fore, that  an^' regulations  governing  in  such  cases  should  be  fair  and 
impartial,  and  not  discriminate  in  favor  of  any  one  nationality.  All 
that  is  demanded  in  the  interest  of  our  citizens  is  that  the  rule  adopted 
shall  be  uniform  and  without  any  practical  discrimination  against  duly 
graduated  American  practitioners.  Common  justice  and  international 
intercourse  alike  suggest  that  no  other  course  should  be  recognized  or 
permitted." 

Mr.  Frelinghuyseu,  Sec.  of  State,  to  Mr.  Wallace,  March  27,  1884;   MSS.  Inst., 
Turkey  :*For.  Rel.,  1884. 

"The  question  of  the  personal  protection  of  parties  whose  sojourn  in 
Mexico  may  be  under  such  conditions  or  associations  as  to  bring  them 
into  conflict  with  Mexican  law  and,  probably,  worse  still,  with  native  pre- 
judices, is  a  grave  matter  which,  from  its  complexity,  requires  the  most 
discreet  handling.  In  the  two  cases  mentioned  in  your  present  dis- 
patch, the  element  of  discretion  in  the  proceeding  of  the  American  citi- 
zens concerned  is  not,  I  regret  to  say,  evident.  In  the  one,  it  is  pro- 
posed to  erect  a  Protestant  house  of  worship  in  immediate  proximity  to 
a  Catholic  church.  In  the  other,  the  ruins  of  a  consecrated  edifice  are 
proposed  to  be  utilized  for  the  worship  of  another  faith.  The  legal 
right  to  do  these  things  may  be  perfect  in  all  respects,  but  the  moral 
aggressiveness  of  the  proceeding  may  tend  to  arouse  local  sensibilities 
and  divert  them  into  undesirable  channels.  It  is  one  thing  to  be  drawn 
unintentionally  into  a  controversy;  it  is  quite  another  to  provoke  it. 

"  I  find  in  the  records  of  this  Department  a  recent  instance  bearing  on 
this  question  and  showing  the  views  of  my  immediate  predecessor 
touching  the  extent  to  which  international  right  may  be  invoked  to  de- 
fend acts  which  may  be  lawful  in  themselves,  but  which  may  tend  to 
disturb  the  po[)ular  feeling. 

"In  1884  an  instruction  (No.  147,  of  January  9)  was  addressed  to 
Mr.  Wallace,  United  States  minister  at  Constantinople,  in  reply  to  a 
dispatch  reporting  the  correspondence  had  with  the  Turkish  Govern- 
ment concerning  the  alleged  conversion  by  the  missionaries,  in  certahi 
parts  of  Armenia,  of  their  dwellings  to  ecclesiastical  purposes,  and  their 
use  of  bells  as  a  part  of  their  worshi[). 

"  Mr.  Frelinghuyseu  remarked  that  the  right  of  private  worship  in 
a  dwelling-house  must  be  maintained,  and  that  if  it  were  infringed 
the  remonstrances  of  the  legation  were  to  be  immediate  and  energetic. 
To  insure  that  the  intervention  of  this  Government  in  such  a  case 
was  obtained  in  good  faith  and  due  as  a  right,  it  was  very  desirable 

247 


§  54.]  INTERVENTION.  [CHAP.  III. 

that  such  discretion  should  be  observed  by  American  citizens  of  non- 
Moliaiiiiiiedan  faith,  who  had  taken  up  their  abode  in  the  Mohammedan 
regions  of  Turkey,  as  not  to  overstep  the  bounds  which  separate  private 
from  public  worship,  or  to  give  grounds  for  any  plausible  complaint 
by  the  Turkish  authorities  that  the  sensibilities  of  their  people  were 
wounded  by  any,  to  them,  offensive  demonstrations  of  a  character  usu- 
ally connected  with  public  ecclesiastical  worship. 

"I  now  quote  Mr.  Frelinghuysen's  language  literally.     He  says: 

"'The  point  may  be  best  illustrated  by  the  question  of  the  bells  said 
to  have  been  hung  by  the  missionaries  in  certain  localities.  It  is  pre- 
sumed, from  the  nature  of  the  case,  that  these  bells  have  been  hung  in 
ornpon  private  dwellings;  that  their  purpose  is  to  summon  worshipers 
to  the  private  services  held  within  those  dwellings,  and  that  (in  connec- 
tion with  the  internal  arrangement  of  those  dwellings,  which,  it  is  sup- 
posed, are  such  as  to  facilitate  the  assemblage  of  persons  outside  of  the 
household)  this  use  of  bells  is  held  bj'  the  Turks  to  indicate  the  use  of  a 
private  dwelling  for  the  usual  purposes  of  a  church. 

"'  If  the  question  was  frankly  presented  by  the  Turkish  Government 
as  to  whether  a  bell,  so  hung  and  so  rung,  openlj",  audibly,  over  an  ex- 
tended neigLborhood,  is  a  needful  or  useful  adjunct  to  a  private  dwell- 
ing, the  answer  would  be  as  frankly  made  that  it  was  not  so  regarded 
by  this  Government.  It  is  not  unlikely  that  an  equivalent,  a  similarly 
conspicuous  Mohammedan  demonstration  upon  a  private  dwelling  in 
any  populous  locality  here  or  in  any  Christian  country,  would  be  sup- 
pressed as  a  nuisance,  and  this  without  any  idea  of  interfering  with  lib- 
erty of  worship  or  individual  conscience.' 

".Mr.  Frelinghu3\seu  also  intimated  to  Mr.  Wallace  that  it  might  be 
well  to  inform  the  missionaries  who  sought  his  advice  or  intervention 
in  such  nuitters,  that  the  United  States  Government  was  not  willing  to 
make  the  right  to  use  church  bells  on  private  dwellings  a  diplomatic 
question  with  Turkey,  and  that  the  part  of  discretion  for  them  to  pur- 
sue would  appear  to  be  the  avoidance  of  opportunities  of  giving  offense 
to  the  peoi)le  among  wliom  their  lot  was  cast. 

"  It  is,  however,  quite  clear  in  the  cases  now  before  me,  that  if  antag- 
onisms be  created  by  acts  in  perfect  accord  with  principles  of  domestic 
and  international  law,  as  well  as  the  letter  of  individual  rights,  the 
parties  are  entitled  to  personal  protection  against  any  unlawful  inter- 
ference with  those  rights,  by  all  means  ordinarily  within  the  power  of 
the  local  authorities  in  the  first  instance,  and  secondly,  in  case  of  denial 
thereof,  by  the  interposition  of  the  Government  of  the  country  of  the 
complaining  individual. 

"  The  administrative  a«d  political  system  of  civilized  Governments  is 
designed  to  afford  security  to  the  individual  in  the  enjoyment  of  his 
lawful  personal  rigiits,  and  is  supposed  to  be  adequate  for  all  usual 
demands  upon  their  power.  The  application  of  extraordinary  means 
for  individual  protection,  especially  if  the  assertion  of  the  individual's 
248 


CHAP.   III.J  PEESECUTED    JEWS.  [§  55. 

rights  be  demoustratively  aggressive,  aud  calculated  from  the  nature 
of  things  iu  the  locality  to  lead  to  coufiict,  is  hardly  to  be  expected. 

"  You  will,  of  course,  understand  that  much  of  this  instruction  is 
designed  for  your  i)ersonal  guidance.  The  tone  of  your  dispatch,  how- 
ever, leads  the  Department  to  place  the  utmost  reliance  in  your  wisdom 
and  discretion  in  dealing  with  this  class  of  questions." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jacksou,  July  17,  1885;  MSS.  lust.,  Mexico. 

The  work  of  the  American  missionaries  at  the  Caroline  Islands,  irre- 
spective of  its  sectarian  relations,  with  which  the  Department  can 
manifest  no  concern,  is  one  of  unostentatious  and  unselfish  beneticence 
which  may  be  properly  brought  to  the  notice  of  the  German  and  Spanish 
Governments  at  the  time  of  the  controversy  between  them  as  to  the 
possession  of  these  islands. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Strobe],  Sept.  7,1885;  MSS.  Inst.,  Spain., 
For  further  instructions  as  to  intervention  in  behalf  of  niissionaines,  see  Mr. 
Bayard,  Sec.  of  State,  to  Mr.  Cox,  Aug.  17,  1885;  MSS.  Inst.,  Turkey;  For. 

Eel.,  1885,  cited  infra,  §  H'SO. 

• 

(11)  Good  offices  foe  persecuted  jews. 

§  55. 

In  1840,  at  the  time  of  the  maltreatment  of  Jews  at  Damascus,  our 
"charge  d'affaires  at  Constantinople  was  instructed  to  interpose  his  good 
ofiices  on  behalf  of  the  oppressed  and  persecuted  race  of  the  Jews  in  the 
Ottoman  dominions,  among  whose  kindred  are  found  some  of  the  most 
worthy  and  patriotic  of  our  own  citizens." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Kurschedt,  Aug.  2G,  1840;  MSS.  Dom.  Let. 

The  joining  by  a  consul  of  the  United  States,  in  a  Mohammedan 
country,  with  consuls  from  other  powers  iu  a  protest  against  the  con- 
viction aud  execution  of  a  Jew  for  blasphemy,  meets  with  the  approval 
of  the  Government  of  the  United  States. 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Chandler,  July  29,  1857;  MSS.  Inst.,  Barbary 
Powers. 

"It  has  been  suggested  to  this  Department,  and  the  suggestion  is 
concurred  in,  that  if  the  sympathy  which  we  entertain  for  the  inhu- 
manly persecuted  Hebrews,  in  the  j^rincipalities  of  Moldavia  aud  Wal- 
lachia,  were  made  known  to  the  Government  to  which  you  are  accred- 
ited, it  might  quicken  aud  encourage  the  eiforts  of  that  Government  to 
discharge  its  duty  as  a  protecting  power  i)ursuant  to  the  obligatious 
of  the  treaty  between  certain  European  states.  Although  we  are  not  a 
party  to  that  instrument,  and,  as  a  rule,  scrupulously  abstain  from  in- 
terfering, directly  or  indirectly,  iu  the  i)ublic  aflairs  of  that  quarter, 
the  grievance  adverted  to  is  so  enormous  as  to  impart  to  it,  as  it  were, 
a  cosmopolitan  character,  in  the  redress  of  which  all  countries,  Govern- 
ments, and  creeds  are  like  interested. 

249 


§  55.]  INTERVENTION.  [CHAP.  III. 

"  You  will  t:()ii.si'(|iuMitl,v  coininuiiicatc  on  this  subject  with  the  niiu- 
istcr  for  foix'ij;i»  aliuirs  of  Russiii,  in  such  a  way  as  you  may  suppose 
might  be  niosi,  liiccly  to  compass  the  object  in  view." 

Mr.  Fish,  .S.h;.  of  .State,  to  .Mr.  Cnrtiii,  July  22,  1872;  MSS.  Inst.,  RiLssiii ;  For. 
Kcl.,  1-72. 

"  I  ha\e  to  acknowleiloe  the  receipt  of  your  letter  of  the  ith  iustant, 
iu  whicii  you  rejpiest  that  ])iotectiou  be  gran  tedby  our  representatives 
in  the  Ottoman  (h)miuions  to  Israelites  of  Russian  birth  in  and  near 
Jerusalem. 

"As  a  lule  our  representatives  abroad  are  permitted  to  extend 
the  protection  of  the  United  States  only  to  native-born  or  natural- 
ized citizens  thereof,  but  the  syin])athy  of  the  United  States  for  all 
oppressed  peoples  in  foreign  countries  has  been  freely  manifested  in 
all  cases  where  it  could  be  done  in  accordance  with  the  spirit  of  inter- 
national courtesy  and  diplomatic  usage.  In  granting  such  protection 
it  is  requisite,  of  course,  that  the  representatives  of  the  country  to 
which  the  persons  requiring  i^rotection  owe  allegiance  should  request 
it,  and  the  authorities  of  the  country  in  which  they  are  at  the  time  re- 
siding consent  to  it.  The  desired  protection  will  be  extended,  if  these 
conditions  are  complied  with." 

Mr.  F. W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Isaacs,  June  29, 1877 ;  MSS.  Dom. 
Let. 

"At  the  invitation  of  the  Spanish  Government,  a  conference  has  re- 
(^ently  been  held  at  the  city  of  Madrid  to  consider  the  subject  of  pro- 
tection by  foreign  powers  of  native  Moors  in  the  Empire  of  Morocco. 
The  minister  of  the  United  States  in  Spain,  was  directed  to  take  part 
iu  the  deliberations  of  this  conference,  the  result  of  which  is  a  conven- 
tion signed  on  behalf  of  all  the  powers  represented.  The  instrument 
will  be  laid  before  the  Senate  for  its  consideration.  The  Government 
of  the  United  States  has  also  lost  no  opportunity  to  urge  upon  that  of 
the  Emperor  of  Morocco  the  necessity,  in  accordance  with  the  humane 
•c\iu\  enlightened  si)irit  of  the  age,  of  putting  an  end  to  the  persecutions 
which  have  been  so  prevalent  in  that  country  of  persons  of  a  faith  other 
than  the  Moslem,  and  especially  of  the  Hebrew  residents  of  Morocco." 
President  Hayes's  Fonrtli  Annual  Message,  1880. 

"No  official  interposition  in  behalf  of  Israelites  wdio  are  Moorish 
subjects  c;ni  be  sanctioned,  as  this  would  be  improper  in  itself,  and 
would  be  a  ])rocedent  against  us  which  could  not  be  gainsaid.  Still, 
there  might  be  cases  in  which  humanity  w^ould  dictate  a  disregard  of 
technicalities,  if  your  ])ersonal  intlueuce  woidd  shield  Hebrews  from 
oppression." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Mathews,  March  20,  1878;  MSS.  Inst.,  Barb 
Powers.     (See  same  to  same,  July  2, 1878 ;  id.) 

250 


PHAP.  III.]  PERSECUTED    JEWS.  [§  55. 

''It  is,  as  you  are  ol"  course  aware,  difficult  lor  a  foreign  Government 
to  make  the  full  force  of  its  iutlueuce  felt  in  intervening  for  the  protec- 
tion of  native  sulyects  of  the  state  addressed.  Nevertheless,  in  view 
of  the  fact  that  the  informal  and  friendly  offices  of  the  United  States 
have,  at  times  before  now,  been  used  with  good  effect,  through  the  in- 
formal action  of  their  representatives  abroad  in  the  interests  of  human- 
ity and  of  that  full  religious  toleration  and  equity  which  form  so  con- 
spicuous a  base  for  our  own  enlightened  institutions,  I  shall  be  happy 
to  instruct  the  United  States  consul  at  Tangier  that  he  is  at  liberty  to 
act,  in  the  sense  of  youf  request,  so  far  as  may  be  consistent  with  his 
international  obligations,  and  the  efficiency  of  his  official  relations  with 
the  Scheriffian  Government." 

Mr.  Evarts,  Sec.  of  State,  to  Messrs.  Isaacs  aud  Wolf,  July  1, 1678;   MSS.  Dom. 
Let. 

Although  the  mitigation  of  the  persecution  of  the  Hebrew  race  in 
Roumania  could  not  be  made  a  sine  qua  non  to  the  establishment  of 
official  relations  with  that  country,  yet  it  may  be  made  the  subject  of 
kindly  representations  prior  to  the  establishment  of  such  relations. 

Mr.  Evarts,  Sec.  ol'  State,  to  Mr.  Kasson,  August  9,  1879;  MSS.  lust.,  Austria. 

'•  I  have  received  a  letter  from  Messrs.  S.  Wolf  and  A.  S.  Solomons, 
of  this  city,  representing  the  '  Union  of  American-Hebrew  Congrega- 
tions,' in  which  they  refer  to  newspaper  statements  indicating  that  the 
Jews  in  Eussia  have  recently  been  subjected  by  the  Government  there 
to  extraordinary  hardships,  and  expressing  a  desire  that  the  minister 
of  the  United  States  to  Saint  Petersburg  may  be  instructed  '  to  make 
such  representations  to  the  Czar's  Government,  in  the  interest  of  relig- 
ious freedom  and  suffering  humanity,  as  will  best  accord  with  the  most 
emphasized  liberal  sentiments  of  the  American  i^eople.'  The  writers  of 
the  letter  observe  at  the  same  time  that  they  are  well  '  aware  of  the  im- 
propriety of  one  nation  interfering  with  the  internal  affairs  of  another 
in  matters  of  a  purely  local  character.' 

"  You  are  sufficiently  well  informed  of  the  liberal  sentiments  of  this 
Government  to  perceive  that  whenever  any  pertinent  occasion  may 
arise  its  attitude  must  always  be  in  complete  harmonj^  with  the  princi- 
ple of  extending  all  rights  and  privileges  without  distinction  on  account 
of  creed,  and  cannot  fail,  therefore,  to  conduct  any  affair  of  business  or 
negotiation  with  the  Government  to  which  you  are  accredited  which  may 
involve  any  expression  of  the  views  of  this  Government  on  the  subject 
in  a  manner  which  will  subserve  the  iuterests  of  religious  freedom.  It 
would,  of  course,  be  inadmissible  for  the  Government  of  the  United 
States  to  approach  the  Government  of  Eussia  in  criticism  of  its  laws 
and  regulations,  except  so  far  as  such  laws  and  regulations  may  injuri-, 
ously  affect  citizens  of  this  country  in  violation  of  natural  rights,  treaty 
obligations,  or  the  provisions  of  international  law,  but  it  is  desired  that 

251 


§  55.]  INTERVENTION.  [CHAP.  III. 

tb<i  attitiulo  of  the  miuister  as  regards  questions  of  diplomatic  contro- 
versy which  involve  an  expression  of  view  on  this  subject  may  be  wholly 
consistent  with  the  theory  on  which  this  Government  was  founded." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  April  14,  ISttO ;  MSS.  Inst.,  Russia; 
For.  Rel.,  1880.  Adopted  by  Mr.  Blaine,  Sec.  of  State,  to  Mr.  Barlholomei, 
June  20,  leSl ;  MSS.  Notes,  Russia. 

Although  official  interference  on  behalf  of  Hebrews  in  Tangier,  not 
citizens  of  the  Unit<^.d  States,  is  not  permissible,  yet  the  consul  of  the 
United  States  at  that  ])lace  may  not  improperly  take  such  steps  of  in- 
quiry as  to  the  condition  of  Hebrews  in  Morocco  as  may  tend  to  the 
amelioration  of  their  condition  and  may  not  be  inconsistent  with  inter- 
national obligations. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Mathews,  April  22,  1880,  March  2,  1881;  MSS. 
lust.,  Barb.  Powers.     (See  infra,  §  164.) 

"  I  have  to  acknowledge  the  receipt  of  Mr.  Hoffman's  No.  205  and 
208,  in  relation  to  the  expulsion  of  foreign  Jews  from  certain-  large 
towns  and  cities  of  Russia,  and  the  expulsion  of  Mr.  Henry  Pinkos,  a 
Jew  and  an  American  citizen,  from  St.  Petersburg  in  particular.  It  ap- 
pears from  the  latter  dispatch  that  Pinkos  has  been  allowed  to  remain 
three  mouths.  Mr.  Hoffman  does  not  specifically  state  that  Mr.  Pinkos 
or  the  other  Jews  referred  to  have  been  ordered  to  leave  Russia  as 
well  as  St.  Petersburg,  but  that  is  the  implication  of  the  dispatches. 

"  In  reply  I  have  to  observe  that  in  the  presence  of  this  fact,  that  an 
American  citizen  has  been  ordered  to  leave  Russia  on  no  other  ground 
than  that  he  is  the  professor  of  a  j)articular  creed,  or  the  holder  of  cer- 
tain religious  views,  it  becomes  the  duty  of  the  Government  of  the 
United  States,  which  impartially  seeks  to  protect  all  its  citizens  of  what- 
ever origin  or  faith,  solemnly,  but  with  all  respect  to  the  Government  of 
His  Majesty,  to  protest.  As  this  order  of  expulsion  applies  to  all  for- 
eign Jews,  in  certain  towns  or  localities,  at  least,  of  Russia,  it  is  of 
course  apparent  that  the  same  is  not  directed  especially  against  the 
Government  of  which  Mr.  Pinkos  is  a  citizen,  and,  indeed,  the  long- 
standing amity  which  has  united  the  interests  of  Russia  with  those  of 
this  Government  would  of  itself  forbid  a  remote  supposition  that  such 
might  be  the  case.  Notwithstanding  this  aspect  of  the  matter,  the 
United  States  could  not  fail  to  look  upon  the  expulsion  of  one  of  its 
citizens  from  Russia,  on  the  simple  ground  of  his  religious  ideas  or 
convictions,  except  as  a  grievance,  akin  to  that  which  liussia  would 
doubtless  find  in  the  expulsion  of  one  of  her  own  citizens  from  the 
United  States  on  the  ground  of  his  attachment  to  the  ftiith  of  his 
fathers. 

"  It  is  intimated  in  Mr.  Hoffman's  No.  205  that  the  reason  of  this  order 

may  be  found  in  the  supposed  implication  of  Jews  in  the  plots  formed 

against  the  life  of  the  Emperor,  and  in  so  far  as  this  may  be  true  the 

Government  of  Russia  has  the  entire  sympathy  of  the  Government  of 

252 


CIIAP.  III.]  PERSECUTED    JEWS.  [§  55- 

the  United  States  in  all  just  preventive  efforts  ;  and  if  there  exists  j;ood 
evidence  that  Mr.  Pinkos  has  been  connected  with  any  ofthese  attempts 
the  Government  of  the  United  States  cannot  object  to  his  expulsion  on 
that  ground.  Butsuch  a  charge  does  not  api)ear  to  have  been  brought 
against  Mr.  Pinkos;  and  it  is  confidently  submitted  to  His  Majesty's 
Government  whether  in  the  event  Mr.  Pinkos  should  finally  be  expelled 
from  Russia,  or  be  otherwise  interrupted  in  his  peaceful  occupations,  on 
the  sole  ground  that  his  religious  views  are  of  one  kind  rather  than 
another,  he  would  not  be  justly  entitled  to  make  reclamation  for  the 
damage  and  loss  to  which  he  might  thereby  be  subjected." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  June  28,  1880;  MSS.Inst.,  Russia;  For. 
Eel.,  1880.     As  to  expulsion  of  aliens,  see  infra,  §  206. 

"  Your  several  dispatches,  numbered  73,  74,  and  75  of  the  30th  and 
31st  of  December,  ultimo,  in  relation  to  the  treatment  of  American 
Jews  in  Russia,  have  been  received,  and  I  have  pleasure  in  commending 
your  zealous  presentation  of  the  cases  of  Pinkos  and  Wilczynski,  and 
of  the  general  questions  involved.  The  assurances  you  have  received 
as  to  the  liberal  treatment  hereafter  to  be  accorded,  as  an  act  of  comity 
and  courtesy  by  the  military  authorities,  to  American  citizens  visiting 
Russia,  are  fully  appreciated. 

"I  have  observed,  however,  that  in  some  of  your  conversations  and 
writings  with  the  foreign  otfice,  you  give  prominence  to  the  natural 
American  sympathy  with  oppressed  Jews  elsewhere  as  a  motive  for  our 
solicitude  as  to  the  treatment  of  Jews  in  Russia.  Such  solicitude  might 
very  properly  exist.;  but  in  your  presentation  of  the  facts  you  should 
be  careful  to  imi)ress  that  we  ask  treaty  treatment  for  our  aggrieved 
citizens,  not  because  they  are  Jews,  but  because  they  are  Americans. 
Russia's  treatment  of  her  own  Jews,  or  of  other  foreign  Jews  resorting 
tbither,  may,  in  determinate  cases,  attract  the  sympathy  of  the  Ameri- 
can people,  but  the  aim  of  the  Government  of  the  United  States  is  the 
specific  one  of  protecting  its  own  citizens.  If  the  hardships  to  which 
Russian  and  foreign  Jews  are  subjected  involves  our  citizens,  we  think 
we  have  just  grouuds  for  remonstrance  and  expectancy  of  better  treat- 
ment. 

•'  This  Government  does  not  know  or  inquire  the  religion  of  the  Amer- 
ican citizens  it  protects.  It  cannot  take  cognizance  of  the  methods  by 
which  the  Russian  authorities  may  arrive  at  the  conclusion  or  con- 
jecture that  ayj'  given  American  citizen  professes  the  Israelitish  fiiith. 
The  discussion  of  t!ie  recent  cases  has  not  as  yet  developed  any  judicial 
procedure  whereby  an  American  citizen,  otherwise  unoffending  against 
the  laws,  is  to  be  convicted  of  Judaism,  if  that  be  an  offense  under 
Russian  law ;  and  we  are  indisposed  to  regard  it  as  a  maintainable 
point  that  a  religious  belief  is,  or  can  be,  a  military  offense,  to  be  dealt 
with  under  the  arbitrary  methods  incident  to  the  existence  of  a  'state 

of  siege.' 

253 


§  55.  I  INTERVENTION.  [CHAP.  III. 

"  This  Govermiieut  is  uot  unmiudful  of  the  difficulties  under  wliicb,  as 
is  alleged,  that  of  Kussia  labors  in  dealing  with  those  of  her  subjects 
wlioni  she  may  deem  disaflected ;  but  the  reasons  adduced  and  methods 
adoi>ted  against  them  should  have  no  application  to  American  citizens 
sojourning  peacefully,  for  business  or  pleasure,  in  Russia,  for  they  are 
not  to  be  (charged  with  abstract  political  disaffection  to  a  Government 
to  which  they  owe  no  allegiance;  and,  if  charged  with  the  commission 
of  unlawful  acts,  they  should  have  guilt  explicitly  imputed  and  proven. 
In  the  latter  case,  the  religion  of  the  accused  cannot  be  admitted  as 
])roof  or  presumption,  either  of  guilt  or  of  innocence. 

"It  is  uot  the  desire  of  this  Government  to  embarrass  that  of  Kussia 
by  insistence  upon  these  points  with  any  degree  of  harshness,  when  the 
disposition  reported  in  your  dispatches  is  so  conciliatory,  and  when  the 
treatment  offered  may  operate  effectively  to  remove  or  prevent  future 
causes  of  complaint  based  on  the  ill  treatment  of  American  citizens 
alleged  to  be  Jews.  It  is  most  desirable,  however,  that  you  should  uot 
])retermit  your  efforts  to  bring  the  matter  to  such  a  stage  as  will  insure 
for  peaceable  and  law-abiding  Americans  in  Eussia  lil^e  treaty  rights 
and  personal  freedom  of  creed  as  Russians  enjoy  in  the  United  States." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  March  3,  1881 ;  MSS.  Inst.,  Euss'ia ;  For. 
Eel.,  1881.     See  infra,  §  1.59. 

"  From  a  careful  examination  of  the  cases  of  grievance  heretofore 
reported  by  your  legation,  it  appears  that  the  action  of  the  Russian 
authorities  toward  Americans  citizens,  alleged  to  be  Israelites,  and 
visiting  Russia,  has  been  of  two  kinds  : 

"  First.  Absolute  prohibition  of  residence  in  Saint  Petersburg  and 
in  other  cities  of  the  Empire,  on  the  ground  that  the  Russian  law  per- 
mits no  native  Jews  to  reside  there,  and  that  the  treaty  between  Russia 
and  the  United  States  gives  to  our  citizens  in  Russian  jurisdiction  no 
other  rights  or  privileges  than  those  accorded  to  native  Russians.  The 
case  of  Henry  Pinkos  may  be  taken  as  a  type  of  this  class. 

"  Second.  Permission  of  residence  and  commerce,  conditionally  on 
belonging  to  the  first  guild  of  Russian  merchants  and  taking  out  a 
license.    The  case  of  Rosens trauss  is  in  point. 

"  The  ai)parent  contradiction  between  these  two  classes  of  actions 
becomes  more  and  more  evident  as  the  question  is  traced  backward. 
Till'  Department  has  rarely  had  presented  to  it  any  subject  of  inquiry 
in  which  a  connected  understanding  of  the  facts  has  proved  more  diffi- 
cult. For  every  allegation,  on  the  one  hand,  that  native  laws,  in  force 
at  the  time  the  treaty  of  1832  was  signed  prohibited  or  limited  the 
sojourn  of  foreign  Jews  in  the  cities  of  Russia,  I  find,  on  the  other 
hand,  specific  invitation  to  alien  Hebrews  of  good  repute  to  domicile 
themselves  in  Russia,  to  pursue  their  business  calling  under  appropriate 
license,  to  establish  factories  there,  and  to  purchase  or  lease  real  estate, 
^loreover,  going  back  beyond  1832,  the  date  of  our  treaty,  I  observe 
254 


CHAP.  III.]  PERSECUTED    JEWS.  [§  55. 

that  the  imperial  ukases  coucerninj?  the  admission  of  foreigners  into 
Itussia  are  silent  on  all  questions  of  faith;  proper  passports,  duly  vised 
beinn;  the  essential  requisite.  And,  fnrther  back  still,  in  the  time  of 
the  Emi)ress  Catherine,  I  dis(M>ver  explicit  tolerance  of  all  foreign  relig- 
ions laid  (U)\vn  as  a  fundamental  policy  of  the  Empire. 

"  Before  examining  the  issues  directly  before  us,  it  may  not  be  out  of 
])lace  to  give  a  brief  review  of  these  historical  data. 

"  The  ukase  of  theEmpress Catherine,  of  2  .'d February,  1784,  although 
concerning  only  the  establishment  of  commercial  relations  with  the 
new  possessions  of  Russia  on  the  Black  Sea,  contains  the  following 
notable  declaration  : 

'"That  Sebastopol,  Kharson,  and  Theodocia  be  opened  to  all  the  na- 
tions friendly  to  our  Empire  for  the  advantage  of  their  commerce  with 
our  faithful  subjects,  *  *  *  that  the  said  nations  may  come  to  these 
cities  in  all  safety  and  freedom.  *  *  *  Each  individual  of  such  na- 
tion, whoever  he  may  be,  as  long  as  he  shall  remain  in  the  said  cities 
by  reason  of  his  business,  or  of  his  own  pleasure,  shall  enjoy  the  free 
exercise  of  his  religion  according  to  the  praiseworthy  precepts  handed 
down  to  us  by  the  sovereigns  our  predecessors,  and  which  we  have 
again  received  and  confirmed.  "  that  all  the  various  nationalities  estab- 
lished in  Russia  shall  praise  God,  the  All  Powerful,  each  one  after  the 
worship  and  religion  of  his  own  ancestors,"  *  »  *  ^ud  ^^j  promise, 
upon  our  imperial  word,  to  accord  to  all  foreigners  in  these  three  cities 
the  same  advantages  which  they  already  enjoy  in  our  capital  and  sea- 
port, St.  Petersburg,  &c.' 

"  The  full  text  of  this  ukase,  which  breathes  a  sjiirit  of  large  and  en- 
lightened tolerance  in  advance  of  the  i)olicy  of  those  dajs,  is  well 
worthy  of  perusal,  and  may  be  consulted  in  vol.  4  of  Martens'  "  Re- 
cueil  des  Traites,"  1st  edition,  Gottingen,  1795,  i)ages  455-457. 

"  The  imperial  ordinance  of  the  Czar  Alexander  I,  of  13tli  August, 
1807,  decrees  a  rigid  system  of  passports  for  foreigners  entering  Russia, 
and  is  applicable  to  'all  foreigners, of  whatsoever  nationality,' but  inti- 
mates no  restriction  on  travel  or  sojourn  in  Russia  by  reason  of  race  or 
faith.  This  ordinance  was  modified  and  am[)litied  by  the  ukase  of  25th 
February,  1817,  but  still  without  any  manner  of  religious  proscrii)tion 
or  restriction. 

"  From  this  time  down  to  18G0  I  can  find  no  trace  of  the  enforcement, 
especially  against  American  citizens,  of  the  restrictions  against  Jewish 
travel  and  residence  which  are  stated  to  have  existed  when  our  treaty 
with  Russia  was  signed.  It  is  a  significant  circumstance  that  the  ac- 
knowledged authorities  on  ])rivate  international  law,  writing  during 
this  period  upon  the  legfslation  of  all  Europe  as  affecting  the  persons 
and  rights  of  aliens,  make  no  reference  to  such  disabilities.  Even  the 
painstaking  Foelix  is  silent  on  this  point,  although  devoting  much  space 
to  the  treatment  and  rights  of  aliens  in  Russia.  1  do  not  desire  to  be 
hftre  understood  as  arguing  that  the  asserted  disabilities  did  not  exist 

;J55 


§  55.]  INTERVENTION.  [CHAP.  III. 

at  that  timo.  The  domestic  history  of  the  Eussian  Empire  shows 
phiinly  the  restrictions  placed  upou  native  Hebrews,  and  especially 
those  of  Polish  origin,  the  efforts  to  confine  them  to  certain  parts  of  the 
Enii>ire,  and  the  penalties  sought  to  be  imposed  to  deter  them  from 
mingling  with  the  Christian  subjects  of  the  Czar.  But  the  same  his- 
tory shows  the  gradual  relaxation  of  those  measures,  until,  in  the  cap- 
ital itself,  the  native  Israelite  population  is  said  to  number  some  thirty 
thousand  souls,  with  their  synagogues  and  sectarian  schools;  while  a 
special  ukase  of  the  late  Czar  distinctly  recognizes  to  foreign  Hebrews 
every  privilege  of  residence  and  trade,  in  a  certain  guild,  which  native 
Christian  subjects  possess. 

"This  ukase  of  the  Emperor  Alexander  II,  of  7th  of  June,  1860,  after 
Ijremising  that  the  need  of  commercial  development  and  the  principles 
of  international  reciprocity  make  it  proper  to  concede  'to  foreigners 
dwelling  in  Russia  the  same  rights  as  those  which  our  subjects  enjoy 
already  in  the  principal  countries  of  I-^urope,'  proceeds  to  permit  all 
aliens  to  enter  any  of  the  trading  guilds  on  the  same  footing  as  natives 
and  to  thereupon  enjoy  all  the  commercial  privileges  which  these  guilds 
confer  upon  native  Russian  traders,  with  the  following  qualification : 

" '  First  remark. — Foreign  Hebrew  subjects,  known  by  reason  of 
their  social  position  and  the  wide  extent  of  their  commercial  operations, 
who  come  from  foreign  lands,  may,  after  the  established  formalities, 
that  is  to  saj',  upon  a  special  authorization,  issued  in  each  case  by  the 
ministers  of  finances,  of  the  interior,  and  of  foreign  affairs,  trade  in  the 
Empire  and  establish  banking-houses  herein,  upon  procuring  the  license 
of  a  merchant  of  the  first  guild.  It  is  likewise  permitted  to  these  same 
Israelites  to  establish  factories,  to  acquire  and  to  lease  real  estate  con- 
formably to  the  prescriptions  of  the  present  ukase.' 

"This  provision,  it  will  be  observed,  extends  to  the  whole  territory  of 
the  Empire.  If,  as  I  understand  the  response  of  the  Russian  ministry 
in  the  case  of  Henry  Pinkos,  native  Israelites  are  forbidden  by  law  from 
residing  or  trading  in  the  capital,  then  this  ukase  places  all  foreign 
Jews  (whether  belonging  to  treaty  powers  or  not)  on  a  more  favored 
footing.  But  if  native  Hebrews,  as  a  iact,  are  permitted  to  reside  in 
St.  Petersburg  and  engage  in  trade  in  other  guilds  than  the  so-called 
'first  guihl,'  there  may  then  well  be  question  whether  such  restriction 
to  a  i)articular  guild  in  the  case  of  an  American  Israelite  is  consonant 
with  the  express  provisions  of  the  treaty  of  1832,  Article  I.  Tliis  point 
was,  in  fact,  raised  in  the  case  of  Theodore  Rosenstrauss,  at  Kharkoff, 
which  is  narrated  at  length,  with  all  the  correspondence  therein  ex- 
changed, in  Mr.  Sewell's  dispatch  No.  20,  of  December  15,  1873;  but  it 
does  not  seem  to  have  been  then  exhaustively  considered  whether  the 
complainant  received,  under  the  treaty,  the  like  treatment  with  the  na- 
tive Hel)rews  of  Kharkoff,  or  whether  he  was  constrained  to  obey  the 
ukase  of  1860,  which,  as  I  have  above  remarked,  is  framed  for  general 
application  to  all  aliens  and  irrespective  of  trea  ty  rights.  It  is,  however, 
256 


CHAP.  III.]  PERSECUTED    JEWS.  [§  55. 

not  my  present  purpose  to  reargue  this  old  case,  but  simply  to  call  at- 
tention to  the  fact  that  Russian  law  may,  and  possibly  does,  modify  and 
restrict  treaty  rights.  The  Eoseustrauss  case  was  special  in  its  nature, 
and  concerned  commercial  privileges  under  a  promulgated  license  law. 
of  the  Empire.  It  may  be  necessary,  at  some  future  time,  to  discuss  the 
questions  it  involves,  but  just  now  I  am  concerned  with  a  different  class 
of  cases,  namely,  those  of  American  citizens  visiting  Russia  for  private 
business  or  for  pleasure  and  travel,  and  duly  i)rovided  with  the  pass- 
ports of  this  Government,  authenticating  their  national  character  and 
their  consequent  right  to  all  the  S])ecific  guarantees  of  our  treaty. 

"  This  brings  me  again  to  the  cases  of  Pinkos  and  Wilczyn^i.  It  is 
unnecessary  here  to  recapitulate  the  facts  tberein,  as  they  are  amply 
presented  by  the  files  of  your  legation,  and  by  the  correspondence  had 
with  the  Russian  foreign  office.  It  is  sufficient  to  characterize  them  as 
instances  of  the  notified  expulsion  from  St.  Petersburg,  by  the  i)olice  or 
military  authorities,  of  American  citizens,  not  because  of  j'.uy  alleged 
failure  to  comply  with  the  ukase  of  18G0,  or  with  the  Russian  commer- 
cial code,  but  simply  on  the  allegation,  unsupported  by  proof,  that  they 
professed  the  Israelitish  faith,  and  that  the  law  forbade  the  sojourn  of 
native  Israelites  in  the  imperial  capital.  On  this  brief  formulation  of 
the  case,  this  Government  believes  that,  under  its  treaty  with  Russia, 
and  in  view  of  iis  treatment  of  Russian  subjects  resorting  under  like 
circumstances  to  the  United  States,  it  has  just  ground  for  complaint, 
and  expectancy  of  better  treatment  from  the  Government  of  Russia. 

"  The  provision  of  our  treaty  of  1832  with  Russia,  governing  the  com- 
mercial i>rivileges  of  the  citizens  and  subjects  of  the  two  countries,  is  as 
follows : 

'"Article  I.  There  shall  be  between  the  territories  of  the  high  con- 
tracting parties  a  reciprocal  liberty  of  commerce  and  navigation, 

"•The  inhabitants  of  their  resjiective  states  shall  mutually  have  lib- 
erty to  enter  the  ports,  places,  and  rivers  of  each  party  wherever  foreign 
commerce  is  permitted.  They  shall  be  at  liberty  to  sojourn  and  reside 
in  all  parts  ivhatsoever  of  said  territories,  in  order  to  attend  to  their  af- 
fairs; and  they  shall  enjoy,  to  that  effect,  the  same  security  and  protec- 
tion as  natives  of  the  country  wherein  they  reside,  on  condition  of 
their  submitting  to  the  laws  and  ordinances  there  prevailing,  and  par- 
ticularly to  the  regulations  in  force  concerning  commerce.' 

"  Article  X  confers  specific  personal  rights  reciprocally.  In  respect 
of  this  article  an  infringement  alike  of  the  letter  and  the  spirit  of  the 
treaty  is  not  only  possible,  but  probable,  under  the  rigid  interpretation 
of  the  Jewish  laws  upon  which  Russia  seems  disposed  to  in.sist.  Its 
stipulations  concern  the  right  to  dispose  of  personal  property  in  Russia 
owned  by  or  falling  to  American  citizens,  who  may  receive  and  disi)ose 
of  inheritances  and  have  recourse  to  the  courts  in  settlement  of  ques- 
tions arising  thereunder.  It  certainly  could  not  be  seriously  claimed 
or  justly  admitted  that  an  American  Hebrew,  coming  within  the  pro- 
^.  ^lis.  102— VOL.  I 17  257 


§  55.]  INTERVENTION.  [CHAP.  III. 

visions  of  this  article,  is  to  be  treated  as  a  candidate  for  commercial 
privileges,  and  required  to  take  out  a  license  as  a  trader  of  the  first  guild, 
subject  to  the  approval  of  his  application  by  the  ministries  of  finance, 
interior,  and  foreign  affairs.  A  personal  right,  not  a  mercantile  privilege, 
is  conferred.  To  bar  an  American  citizen  whose  rights  might  be  so  con- 
cerned from  personal  appearance  in  i)rotection  of  those  rights  would  be 
a  distinct  departure  from  the  engagement  of  the  treaty ;  while  to  sup- 
pose that  his  case  might  come  under  the  discretional  authority  of  the 
police  or  the  military  power,  which  might  refuse  his  personal  sojourn 
in  any  part  of  the  Empire,  or  allow  it  under  conditions  depending  on 
their  godd  will,  is  to  suppose  a  submission  of  the  guarantees  of  the 
treaty  to  a  tribunal  never  contemplated  by  its  framers. 

"  Upon  a  case  arising,  this  Government  would  hold  that  the  treaty 
conferred  specific  rights  on  all  American  citizens  in  the  matter  of  the 
disposition  of  their  personal  property,  irrespectiye  of  any  conditions 
save  those  which  the  article  itself  expressly  creates ;  that  their  actual 
presence  when  necessary  to  protect  or  assert  their  interests  is  abso- 
lutely guaranteed  whenever  and  for  whatever  time  it  may  be  needful; 
and  that  this  international  engagement  sui)ersedes  any  municipal  rule 
or  regulation  which  might  interfere  with  the  free  action  of  such  indi- 
viduals. 

"It  would  be,  in  the  judgment  of  this  Government,  absolutely  inadmis- 
sible that  a  domestic  law  restraining  native  Hebrews  from  residence 
in  certain  parts  of  the  Empire  might  operate  to  hinder  an  American  cit- 
izen, whether  alleged  or  known  to  profess  the  Hebrew  faith,  from  dis- 
posing of  his  property,  or  taking  possession  thereof  for  himself  (subject 
only  to  the  laws  of  alien  inheritance)  or  being  heard  in  person  by  the 
courts  which,  under  Eussian  law,  may  be  called  upon  to  decide  matters 
to  which  he  is  necessarily  a  party.  The  case  would  clearly  be  one  in 
which  the  obligation  of  a  treaty  is  supreme,  and  where  the  local  law 
must  yield.  These  questions  of  the  conflict  of  local  law  and  interna- 
tional treaty  stipulations  are  among  the  rriost  common  which  have  en- 
gaged the  attention  of  publicists,  and  it  is  their  concurrent  judgment 
that  where  a  treaty  creates  a  privilege  for  aliens  in  express  terms,  it 
cannot  be  limited  by  the  operation  of  domestic  law  without  a  serious 
breach  of  the  good  faith  which  governs  the  intercourse  of  nations.  So 
long  as  such  a  conventional  engagement  in  favor  of  the  citizens  of  an- 
other state  exists,  the  law  governing  natives  in  like  cases  is  manifestly 
inapplicable. 

"I  need  hardly  enlarge  on  the  point  that  the  Government  of  the 
United  Statesconcludes  its  treaties  with  foreign  states  for  the  equal  pro- 
tection of  all  classes  of  American  citizens.  It  can  make  absolutely  no 
discrimination  between  them,  whatever  be  their  origin  or  creed.  So  that 
they  abide  by  the  laws,  at  home  or  abroad,  it  must  give  them  due  pro- 
tection and  expect  like  protection  for  them.  Any  unfriendly  or  discrim- 
inatory act  against  them  on  the  part  of  a  foreign  power  with  which  we 
258 


CHAP.  III.]  PERSECUTED    JEWS.  [§  55. 

are  at  peace  would  call  for  our  earuest  remonstrance,  whether  a  treaty 
existed  or  not.  The  friendliness  of  our  relations  with  foreign  nations 
is  emphasized  by  the  treaties  we  have  concluded  with  them.  We  have 
been  moved  to  enter  into  such  international  compacts  by  considerations? 
of  mutual  benefit  and  reciprocity,  by  the  same  considerations,  in  short, 
which  have  animated  the  Russian  Government  from  the  time  of  the 
noble  and  tolerant  declarations  of  the  Empress  Catherine  in  1784  to 
those  of  the  ukase  of  18G0.  We  have  looked  to  the  spirit  rather  than 
to  the  letter  of  those  engagements,  and  believed  that  they  should  be  in- 
ter])reted  in  the  broadest  way  ;  and  it  is,  therefore,  a  source  of  unfeigned 
regret  to  us  when  a  Government,  to  which  we  are  allied  by  so  many  his- 
torical ties  as  to  that  of  Russia,  shows  a  disposition  in  its  dealings  with 
us  to  take  advantage  of  technicalities,  to  appeal  to  the  rigid  letter  and 
not  the  reciprocal  motive  of  its  international  engagements  in  justifica- 
tion of  the  expulsion  from  its  territories  of  peaceable  American  citizens 
resorting  thither  under  the  good  faith  of  treaties  and  accused  of  no 
wrong-doing  or  of  no  violation  of  the  commercial  code  of  the  land,  but 
of  simple  adherence  to  the  faith  of  their  fathers. 

."That  the  two  American  citizens  whose  unfortunate  cases  have 
brought  about  this  discussion  were  not  definitely  expelled  from  St.  Pe- 
tersburg, but  were  allotted,  by  the  military  authorities,  a  brief  time  to 
arrange  their  private  aflairs,  said  to  coincide  with  the  usual  time  during 
which  any  foreigner  may  remain  in  the  Empire  under  his  original  pass- 
port, does  not  alter  the  matter  as  it  appears  to  our  eyes.  The  motive 
alleged  remains  the  same,  and  the  princii)le  involved  is  one  recognized 
neither  by  our  fundamental  laws  nor  by  any  of  the  conventions  we  have 
concluded  with  foreign  states. 

"  It  must  not  be  forgotten  that  this  issue,  of  the  banishment  of  our 
citizens  from  a  friendly  territory  by  reason  of  their  alleged  religion,  is 
a  new  one  in  our  international  relations.  From  thetime  when  the  treaty 
of  1832  was  signed  down  to  within  a  verj^  recent  period,  there  had  been 
nothing  in  our  relations  with  Russia  to  lead  to  the  supposition  that  our 
flag  did  not  carrj"  with  it  equal  protection,  to  every  American  within 
the  dominions  of  the  Empire.  Even  in  questions  of  citizenship  affect- 
ing the  interests  of  naturalized  citizens  of  Russian  origin,  the  good  dis- 
position of  the  Imperial  Government  has  been  on  several  occasions 
shown  in  a  most  exemplary  manner ;  and  I  am  sure  the  actual  counselors 
of  His  Majesty  cannot  but  contemplate  with  satisfaction  the  near  ap- 
proach made  in  1874  to  the  arrangement  of  negotiations  for  a  treaty  of 
naturalization  between  the  two  countries.  On  that  occasion,  as  will  be 
seen  by  consulting  Mr.  Jewell's  No.  02,  of  April  22,  1874,  the  only  re- 
maining obstacle  lay  in  the  statute  of  the  Empire  touching  the  con- 
ferment and  loss  of  citizenship,  of  which  the  examining  commission  and 
the  consultative  council  of  state  recommended  the  modification  in  a  sense 
compatible  with  the  modern  usage  of  nations. 

^59 


§  55.]  INTERVENTION.  [CHAP.  III. 

"  I  can  readily  conceive  that  statutes  bristling  with  difiBculties  remain 
unrepealed  in  the  volumes  of  the  law  ot'Eussiaas  well  as  of  other  nations. 
Even  we  ourselves  have  our  obsolete  "  Blue  Laws";  and  their  literal 
enforcement,  if  such  a  thing  were  possible,  might  today  subject  a  Rus- 
sian of  free-thinking  proclivities,  in  ^Maryland  or  Delaware,  to  the  pen- 
alty of  having  his  tongue  bored  through  with  a  red-hot  iron  for  blas- 
phemy. Happily  the  spirit  of  progress  is  of  higher  authority  than  the 
letter  of  outworn  laws ;  and  statutory  enactments  are  not  so  inelastic 
but  that  they  relax  and  change  with  the  general  advancement  of  peo- 
ples in  the  path  of  tolerance. 

"  The  simple  fact  that  thousands  of  Israelites  to-day  pursue  their  call- 
ings unmolested  in  St.  Petersburg,  under  the  shadow  of  ancient  jn'o- 
scriptive  laws,  is  in  itself  an  eloquent  testimony  to  the  principle  of  prog- 
ress. And  so,  too,  in  Spain,  where  the  persecution  and  expulsion  of 
the  Jews  is  one  of  the  most  notable  and  deplorable  facts  in  history,  and 
where  the  edicts  of  the  earlier  sovereigns  remain  unrepealed,  we  see  to- 
day an  offer  of  protection  and  assured  right  of  domicile  made  to  the 
Israelites  of  every  race. 

"  I  leave  out  of  consideration  in  the  present  instruction  the  questipn 
whether  the  citizens  or  subjects  of  other  nations  are  more  or  less  fa- 
vored than  our  own  in  this  regard.  I  have  not,  however,  failed  to  notice 
the  statement  made  to  you  by  Mr.  de  Giers,  in  one  of  your  reported 
conversations  with  him,  that  German  and  Austrian  Jews  are  subjected 
to  the  proscriptions  in  question,  and  the  implication  therefrom  that  if 
the  Governments  of  Germany  and  Austria  do  not  complain,  there  is  no 
reason  why  we  should. 

"  It  is  not  for  me  to  examine  or  conjecture  the  reciprocal  motives  of 
policy  or  of  international  convention  which  may  govern  in  these  in- 
stances. Neither  have  I  failed  to  remark  the  seeming  uncertainty  with 
which  the  British  Government  has  approached  the  case  of  the  English 
Israelite,  Mr.  Lewisohn,  who  was  recently  required  to  quit  St.  Peters- 
burg, notwithstanding  that  the  personal  guarantees  of  the  Anglo-Rus- 
sian treaty  of  January  12,  1859,  in  its  eleventh,  twelfth,  and  thirteenth 
articles,  are  more  particular  than  in  our  own  treaty,  and  were,  pre- 
sumably, like  our  own  stipulations,  framed  with  the  intent  of  securing 
impartial  rights  and  protection  in  Russia.  I  am  perfectly  willing  to 
rest  tuy  argument  on  the  moral  weight  of  our  treaty  of  1832,  although 
of  course  not  averse  to  availing  myself  of  any  support  which  may  come 
from  any  other  quarter  to  fortify  what  we  conceive  to  have  been  our 
clear  purpose  in  executing  that  instrument.  And  under  no  circum- 
stances would  1  in  the  name  of  this  Government  be  willing  to  accept 
a  less  measure  of  impartial  privilege  for  a  citizen  of  the  United  States 
visiting  or  sojourning  in  Russian  territory  than  is  assured  to  aliens  in 
the  like  case  by  any  stipulation  with  or  usage  toward  any  other  nation 
on  the  part  of  Russia. 

"  I  had  the  honor  in  my  letter  of  the  20th  ultimo  to  Mr.  Bartholomei 
260 


CHAP.  III.]  PERSECUTED    .JEWS.  [§  55. 

to  acquaint  bim  with  the  geueral  views  of  the  President  in  relation  to 
this  matter. 

"  I  cannot  better  bring  this  instruction  to  a  close  than  by  repeating 
and  amplifying  those  views  which  rlie  President  so  firmly  holds,  and 
which  he  so  anxiously  desires  to  have  recognized  and  responded  to  by 
the  Russian  Government. 

"  He  conceives  that  the  intention  of  the  United  States  in  negotiating 
and  concluding  the  treaty  of  De(;ember  18,  1832,  and  the  distinct  and 
enlightened  reciprocal  engagements  then  entered  into  with  the  Govern- 
ment of  Russia,  give  us  a  moral  ground  to  expect  careful  attention  to 
our  opinions  as  to  its  rational  interpretation  in  the  broadest  and  most 
impartial  sense  ;  that  he  would  deeply  regret,  in  view  of  the  gratifying 
friendliness  of  the  relations  of  the  two  countries  which  he  is  so  desirous 
to  maintain,  to  find  that  this  large  national  sentiment  fails  to  control 
the  present  issue,  or  that  a  narrow  and  rigid  limitation  of  the  construc- 
tion possible  to  the  treaty  stipulations  between  the  two  countries  is 
likely  to  be  adhered  to ;  that  if,  after  a  frank  comparison  of  the  views 
of  the  two  Governments,  in  the  most  amicable  spirit  and  with  the  most 
earnest  desire  to  reach  a  mutually  agreeable  conclusion  the  treaty  stip- 
ulations between  the  United  States  and  Russia  are  found  insufficient 
to  determine  questions  of  nationality  and  tolerance  of  individual  faith, 
or  to  secure  to  American  citizens  in  Russia  the  treatment  which  Rus- 
sians receive  in  the  United  States,  it  is  simply  due  to  the  good  relations 
of  the  two  countries  that  these  stipulations  should  be  made  sulficient 
in  these  regards  ;  and  that  we  can  look  for  no  clearer  evidence  of  the 
good  will  which  Russia  professes  toward  us  than  a  frank  declaration 
of  her  readiness  to  come  to  a  distinct  agreement  with  us  on  these  points, 
in  an  earnest  and  generous  spirit. 

"  I  have  observed  that  in  your  conferences  on  this  subject  heretofore 
with  the  minister  for  foreign  affairs,  as  reported  in  your  dispatches, 
you  have  on  some  occasions  given  discreet  expression  to  the  feelings  of 
sympathy  and  gratification  with  which  this  Government  and  peoi)le  re- 
gard any  steps  taken  in  foreign  countries  in  the  direction  of  a  liberal 
tolerance  analogous  to  that  which  forms  the  fundamental  principle  of 
our  national  existence.  Such  expressions  were  natural  on  your  part, 
and  reflected  a  sentiment  which  we  all  feel.  But  in  making  the  Presi- 
dent's views  known  to  the  minister  I  desire  that  you  will  carefully  sub- 
ordinate such  sentiments  to  the  simple  consideration  of  what  is  con- 
scientiously believed  to  be  due  to  our  citizens  in  foreign  lands.  You  will 
distinctly  impress  upon  him  that,  regardful  of  the  sovereignty  of  Russia, 
we  do  not  submit  any  suggestions  touching  the  laws  and  customs  of  the 
Empire  except  where  those  laws  and  customs  conflict  with  and  destroy 
the  rights  of  American  citizens  as  secured  by  treaty  obligations. 

"  You  can  further  advise  him  that  we  can  make  no  new  treaty  with 
Russia,  nor  accept  any  construction  of  our  existing  treaty,  which  shall 
discriminate  against  any  class  of  American  citizens  on  account  of  their 
religious  faith.  261 


§  55.]  INTERVENTION.  [CHAP.  III. 

"  I  cannot  but  feel  assured  that  this  earnest  presentation  of  the  views 
of  this  Government  will  accord  with  the  sense  of  justice  and  equity  of 
that  of  Kussia,  and  that  the  questions  at  issue  will  soon  find  their  natu- 
ral solution  in  harmony  with  the  noble  spirit  of  tolerance  which  per- 
vaded tlie  ukase  of  the  Empress  Catherine  a  century  ago,  and  with  the 
statesmanlike  declaration  of  the  principle  of  reciprocity  found  in  the 
later  decree  of  the  Czar  Alexander  II  in  1860. 

"You  may  read  this  dispatch  to  the  minister  for  foreign  affairs,  and 
should  he  desire  a  copy,  you  will  give  it  to  him." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Foster,  July  29, 1881 ;  MSS.  Inst.,  Russia ;  For. 

Rel.,lH81. 
As  to  intervention  in  behalf  of  ''Mortara  Boy,"  see  supra,  §  52. 

"  I  am  well  aware  that  the  domestic  enactments  of  a  state  toward  its 
own  subjects  are  not  generally  regarded  as  a  fit  matter  for  the  intervention 
of  another  independent  power;  but  when  such  enactments  directly  affect 
the  liberty  and  property  of  foreigners  who  resort  to  a  country  under 
the  supposed  guarantee  of  treaties  framed  for  the  most  liberal  ends — 
when  the  conscience  of  an  alien  owing  no  allegiance  whatever  to  the 
local  sovereignty  is  brought  under  the  harsh  yoke  of  bigotry  or  preju- 
dice which  bows  the  necks  of  the  natives,  and  when  enlightened  ap- 
peals made  to  humanity,  to  the  principles  of  just  reciprocity,  and  to  the 
advancing  spirit  of  the  age  in  behalf  of  tolerance  are  met  with  intima- 
tions of  a  purpose  to  still  further  burden  the  unhappy  sufferers,  and  so 
to  necessarily  increase  the  disability  of  foreigners  of  like  creed  resorting 
to  Eussia,  it  becomes  in  a  high  sense  a  moral  duty  to  our  own  citizens 
and  to  the  doctrine  of  religious  freedom  we  so  strongly  uphold  to  seek 
proper  protection  for  those  citizens  and  tolerance  for  their  creed  in  for- 
eign lands,  even  at  the  risk  of  criticism  of  the  municipal  laws  of  other 
states. 

"It  cannot  but  be  inexpressibly  painful  to  the  enlightened  statesmen 
of  Great  Britain,  as  well  as  of  America,  to  see  a  discarded  prejudice  of 
the  dark  ages  gravely  revived  at  this  day — to  witness  an  attempt  to 
base  the  policy  of  a  great  and  sovereign  state  on  the  mistaken  theory 
that  thrift  is  a  crime,  of  which  the  unthrifty  are  the  innocent  victims, 
and  that  discontent  and  disaffection  are  to  be  diminished  by  increasing 
the  causes  from  which  they  arise." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Lowell,   Nov.  22,  1881;  MSS.  Inst.,  Great 
Britain. 

"  The  prejudice  of  race  and  creed  having  in  our  day  given  way  to  the 
claims  of  our  common  humanity,  the  people  of  the  United  States  have 
heard,  with  great  regret,  the  stories  of  the  sufferings  of  the  Jews  in 
Russia.  It  may  be  that  the  accounts  in  the  newspapers  are  exaggerated, 
and  the  same  may  be  true  of  some  private  reports.  Making,  however, 
due  allowance  for  misrepresentations,  it  can  scarcely  be  doubted  that 
much  has  been  done  which  a  humane  and  just  person  must  condemn. 
262 


CHAP.  III.]  PERSECUTEi)   JEWS.  [§  55. 

''  The  President,  of  course,  feels  that  the  Government  of  the  Emperor 
shouhl  not  be  held  morally  responsible  for  acts  which  it  considers 
wrong,  but  which  it  may  be  powerless  to  prevent. 

"If  that  be  true  of  this  case,  it  would  be  worse  than  useless  for  me  to 
direct  you,  as  the  representative  of  the  United  States,  to  give  official 
expression  to  the  feeling  which  this  treatment  of  the  Jews  calls  forth  in 
this  country.  Sliould,  however,  the  attitude  of  the  Eussian  Govern- 
ment be  different,  and  should  you  be  of  the  opinion  that  a  more  vigorous 
eflbrt  might  be  put  forth  for  the  prevention  of  this  great  wrong,  you  will, 
if  a  favorable  opportunity  offers,  state,  with  all  proper  deference,  that 
the  feeling  of  friendship  which  the  United  States  entertains  for  Russia 
prompts  this  Government  to  express  the  hoiDC  that  the  Imperial  Gov- 
ernment will  find  means  to  cause  the  persecution  of  these  unfortunate 
fellow-beings  to  cease. 

"  This  instruction  devolves  a  delicate  duty  upon  you,  and  a  wide  dis- 
cretion is  given  you  in  its  execution.  However  much  this  Republic 
may  disapprove  of  affairs  in  other  nationalities,  it  does  not  conceive 
that  it  is  its  right  or  province  officiously  and  offensively  to  intermeddle. 
If,  however,  it  should  come  to  your  knowledge  that  any  citizens  of  the 
United  States  are  made  victims  of  the  persecution,  j^ou  will  feel  it  your 
duty  to  omit  no  effort  to  protect  them,  and  to  rej^ort  such  cases  to  this 
Department." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Hoffman,  Ap.  1.5, 1882;  MSS.  Inst.,  Rus- 
sia; For.  Eel.,  1882. 

"I  have  received  a  dispatch,  No.  429,  of  the  7th 'instant,  from  Mr. 
Heap,  consul-general  at  Constantinople,  in 'reference  to  the  expulsion 
from  Safed,  Palestine,  of  two  American  citizens,  Louis  Lubrowsky  and 
brother,  Hebrews  by  nativity,  because  of  tbeir  religious  faith.  It  ap- 
pears that  these  brothers  on  their  recent  arrival  at  Safed  were  required 
to  give  bonds  in  the  sum  of  400  Turkish  pounds  to  leave  the  country  in 
ten  days  or  obtain  a  special  license  to  remain. 

"  The  facts  in  detail  will  be  found  narrated  in  the  correspondence 
which,  it  seems,  Mr.  Heap  brought  to  the  attention  of  Mr.  Emmet  on 
the  22d  ultimo  and  3d  instant.  For  this  reason  I  do  not  inclose  to  j^ou 
a  copy  of  Mr.  Heap's  dispatch,  but  you  will  immediately  call  upon  him 
for  such  further  particulars  as  you  may  desire,  should  the  facts  not  be 
fully  before  your  legation. 

"This  case  is  commended  to  your  attention  as  one  in  which  the- De- 
partment entertains  the  confidence  that  you  will  take  the  greatest  in- 
terest and  with  which  you  will  be  competent  to  deal  as  a  due  regard 
for  the  rights  of  American  (;itizens  requires. 

"  It  is  to  be  borne  in  mind,  however,  that  those  rights,  under  treaties, 
are  to  be  measured  in  a  certain  degree  by  the  rights  conceded  to  other 
foreigners  of  the  most  favored  nation.  You  will  be  careful,  therefore, 
to  make'  no  untenable  demand  as  of  right.     But  friendship  and  inter- 

2C3 


§  56.]  INTERVENTION.  [CHAP.  III. 

rational  comity  entitle  the  United  States  to  ask  and  expect  that  no  race 
or  class  distinction  shall  be  made  as  regards  American  citizens  abroad, 
and  this  Government  cannot  acquiesce  in  any  such  prescriptive  measures 
which  compel  its  citizens  to  abandon  Turkey  solely  on  account  of  their 
religious  proclivities. 

"Mr.  Heap's  dispatch  will  acquaint  you  with  the  extent  of  his  action 
and  that  of  the  consul  at  Beirut  to  prevent  this  wrong.'' 

Mr,  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Aug.  29,  1885;  MSS.  Inst.,  Turkey;    For. 
Eel..  1885. 

"  Your  No.  22  of  the  24th  instant  has  been  received,  and  the  action 
of  Mr.  Heap,  therein  reported,  in  opposing  the  order  of  the  Turkish 
authorities  for  the  expulsion  of  the  brothers  Lubrowsky,  American  citi- 
zens, from  Safed,  in  Palestine,  solely  because  of  their  Semitic  faith, 
meets  with  the  approval  of  the  Department  as  anticipating  the  instruc- 
tions sent  to  you  on  the  29Lh  of  August  last. 

"  This  Government  cannot  assent  to  any  religious  test  being  applied 
to  citizens  of  the  United  States  by  any  power  whatever.  No  officer  of 
the  United  States  is  constitutionally  competent  to  admit  the  validity  of 
such  a  test.  Hence,  Mr.  Heap's  telegraphic  instructions  to  Mr.  Eobe- 
son  that  the  Lubrowsky  brothers  should  not  yield  to  the  order  of  expul- 
sion, unless  force  were  employed,  is  approved  as  discreet  and  proper. 
It  is  hoped  that  your  anticipations  may  be  realized,  and  that,  in  view 
of  the  attitude  taken  by  the  legation,  the  matter  may  rest  without  fur- 
ther proceedings  against  the  parties." 

Mr.  Bayard,  Sec',  of  State,  to  Mr.  Cox,  Oct.  15,  1885;  MSS.  Inst.,  Turkey;  For. 

ReL,  1885. 
As  to  persecution  of  Jews  in  Russia,  see  speecli  of  Mr.  S.  S.  Cox,  July  31,  1882; 

pamphlet,  library  Dep.  of  State. 
As  to  persecution  of  Jews  inRoumania,  see  Senate  Ex.  Doc.  No.  75,  42d  Cong., 

2d  seas. ;  as  to  correspondence  with  Great  Britain  as  to  persecution  of  Jews, 

see  Brit,  and  For.  State  Papers,  1871-'2,  vol.  62. 
As  to  expulsion  of  offensive  residents,  see  infra,  f}  206. 

(12)  Non-prohibition  of  publications  or  subscriptions  in  aid 
OF  political  action  abroad. 

§  56. 

That  a  neutral  may  permit  free  discussion,  in  his  territory,  in  respect  to  bel- 
ligerents, see  infra,  $  389. 
As  to  expressions  of  sympathy  with  liberal  political  movements,  see  supra,  $  47a. 

Libelous  letters  addressed  in  this  country  by  a  citizen  of  the  United 
States  to  a  foreign  minister  may  be  the  subject  of  judicial  prosecution, 
but  not  of  diplomatic  interference. 

Mr.  Hunter,  Acting  Sec.  of  State,  to  Mr.  Sartiges,  May  22,  1852;   MSS.  Notes, 
France.     See  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Sartiges,  June  2,  1856. 

"The  Government  of  the  United  States  have  no  jurisdiction  over  the 
press  in  the  respective  States,  and  if  such  jurisdiction  existed,  its  ex- 
264 


CHAP.  III.]  LIBEETY    OF    THE    PRESS.  [§56. 

ercise  with  a  view  to  prevent  or  to  iuliict  punishment  for  any  publica- 
tion criticising  or  condemning  the  course  of  public  measures  in  other 
countries,  or  in  our  own,  would  be  an  experiment  upon  the  feeble  for- 
bearance, little  likely  to  be  made,  and  if  made,  sure  to  be  defeated." 

Mr.    Cass,  Sec.  of   State,  to  Mr.  Moliua,  Nov.  26,  18G0 ;  MSS.  Notes,  Central 
America. 

"  Free  discussion,  by  speech  and  in  the  press,  in  public  assemblies, 
and  in  private  conversation,  of  the  Cretan  insurrection,  and  of  all  other 
political  transactions  and  niovements  occurring-  either  abroad  or  at 
home,  is  among  the  rights  and  liberties  guaranteed  by  the  "Constitution 
of  the  United  States  to  every  citizen  and  even  to  every  stranger  who* 
sojourns  among  us,  and  is  altogether  exempt  from  any  censure  or  injury 
on  the  part  of  the  Government  of  the  United  States.  The  opponents 
of  Crete  and  the  friends  of  Turkey  exercise  very  freely  the  same  right. 
On  the  other  hand,  this  Government  makes  no  inquiry  concerning  what 
is  preached,  spoken,  or  written  in  Turkey,  or  in  any  other  country,  by 
the  citizens  or  subjects  thereof,  although  the  matters  discussed  may  be 
deeply  interesting  to  the  American  people.  The  maxim  \yas  long  since 
adopted  in  the  United  States  that  even  error  of  opinion  may  be  safely 
tolerated  where  reason  Is  left  free  to  combat  it." 

Mr.  Seward,  Sec.  of  State,  to  Blacque  Bey,  Jan.  20,  1869 ;  MSS.  Notes,  Turkey. 

The  Executive  of  the  United  States  cannot  initiate  proceedings  for 
the  prosecution  of  parties  in  Xew  York  charged  with  libeling  foreign 
sovereigns. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Eoberts,  June  1,  1869;  MSS.  Notes,  Spain. 

"  This  Government  and  people  feel  nothing  but  detestation  for  such 
publications  [i)rompting  assassination  and  arson  in  England].  The  ques- 
tion whether  a  journal  making  publications  of  the  character  of  those  re- 
ferred to  could  or  could  not  by  process  of  law  be  suppressed,  as  calcu- 
lated to  lead  to  an  infraction  of  our  treaty  engagements,  or  whether  Con- 
gress could  properly  legislate  on  the  subject,  does  not  now  demand  the 
expression  of  an  opinion.  The  Government  of  the  United  States  knows 
the  effect  of  the  publications  in  question,  and  liow  to  treat  them.  We 
have  a  large  population  of  Irish  people,  and  of  those  directly  descended 
from  them.  They  are  attached  to  this  country,  obedient  to  its  laws,  and 
for  the  most  part  citizens  of  this  liepublic.  They  naturally  have  a  friend- 
ship for  their  kinsmen  in  the  United  Kingdom,  and  perhaps  a  pasTsive 
sympathy  with  them  in  the  agitations  in  Ireland,  but  as  their  sympathy 
does  not  manifest  itself  in  overt  acts,  we  think  it  would  not  be  wise  by 
any  governmental  action  to  excite  in  them  hostility  towards  a  nation 
with  which  we  are  at  peace,  and  thus  disturb  the  cordiality  which  it  is 
both  the  pleasure  and  the  interest  of  this  Rei)ublic  to  maintain  with 
Her  Majesty's  Government.  These  considerations  have  weight  and 
influence ;  but  what  is  conclusive  on  the  subject  is  that  this  Govern- 

265 


^56.]  INTERVENTION.  [cHAP.  lit. 

lueiit  cannot  consent,  by  its  official  notice,  to  emphasize,  dignify,  and 
give  prominence  to  articles  of  the  character  complained  of,  which, 
while  unnoticed,  are  impotent.  Her  Majesty's  Government  should,  if 
satisfied  with  the  friendly  purpose  of  this  Government,  accord  to  It 
the  right  when  it  thinks  its  own  interests  are  involved,  of  shaping  its 
policy  according  to  its  own  discretion.  This  right  the  Government  of 
the  United  States  must  exercise." 

Mr.  Frelinghuysen,   Sec.  of  State,  to  Mr.  Lowell,  Dec.  4^   1883;  MSS.  Inst., 
Great  Britain. 

'*This  Gdvemment  is  as  deeply  sensible  as  any  other  of  the  danger 
to  all  government  and  society  from  lawless  combinations  which  may 
secretly  plot  assassination  and  destruction  of  life  and  property.  At 
the  same  time  it  can  only  proceed  against  offenders,  or  suspected  offend- 
ers, in  accordance  with  law ;  and  it  is  at  least  doubtful  whether  any  law 
is  now  in  existence  in  this  country  by  which  the  publishers  of  the  paper 
or  papers  in  question  can  be  called  to  account.  I  am  not  aware  that 
such  a  law  exists  in  any  country.  It  is  but  recently  that  any  law  for 
the  punishment  of  incitement  to  the  commission  of  murder  in  foreign 
countries  was  placed  on  the  British  statute  book. 

"  The  present  laws  of  the  United  States  only  aim  to  meet  the  cases 
of  actual  overt  acts  of  hostility  against  a  friendly  nation  when  such 
acts  are  committed  within  the  territory  of  the  United  States.  So  far 
as  I  remember,  this  is  the  full  extent  to  which  other  nations  have  gone 
in  tJjis  direction." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Lowell,  Nov.  24,  1884 ;  MSS.  Inst., 
Great  Britain. 

It  was  held  in  1794,  by  Mr.  Eandolph,  when  Secretary  of  State,  fol- 
lowing the  opinion  of  the  Attorney-General,  that  a  libel  on  the  British 
minister  is  indictable  at  common  law  in  the  Federal  courts. 

Mr.   Eandolph,  Sec.  of  State,  to  Mr,  Harrison,  Sept.  18,  1794 ;  *MSS.  Dom.  Let. 

This  view,  however,  was  exploded  by  the  subsequent  rulings  of  the 
Supreme  Court  that  the  Federal  court  have  iio  common-law  criminal 
jurisdiction. 

"  In  a  charge  by  Chief  Justice  McKean,  in  Philadelphia,  in  1791,  the 
attention  of  the  grand  jury  was  called  to  certain  publications  of  Cob- 
bett  and  others,  grossly  attacking  the  King  of  Spain  as  the  supple  tool 
ot  the  French  nation.  From  this  charge,  the  following  passages  are 
extracted : 

;"At  a  time  when  misunderstandings  prevail  between  the  Republic 
of  France  and  the  United  States,  and  when  our  General  Government 
have  appointed  public  ministers  to  endeavor  to  effect  their  removal,  and 
restore  the  forinor  harmony,  some  of  the  journals  or  newspapers  in  the 
city  of  Phila(loli)hia  have  teemed  with  the  most  irritating  invectives, 
couched  in  the  most  vulgar  and  opprobiious  language,  not  only  against, 
the  French  nation  and  their  allies,  but  the  very  men  in  power  with 
whom  the  ministers  of  our  country  are  sent  to  negotiate.  These  pub- 
2G6 


CHAP.  III.]  LIBERTY    OF    THE    PEESS.  [§  56. 

lications  have  an  evident  tendency,  not  only  to  frustrate  a  reconcilia- 
tion, but  to  create  a  rupture  and  provoke  a  war  between  the  sister 
Eepublics,  and  seem  calculated  to  vilify, — nay,  to  subvert, — all  republi- 
can Governments  whatever. 

"'Impressed  with  the  duties  of  my  station,  I  have  used  some  en- 
deavors for  checking  these  evils,  by  binding  over  the  editor  and  i)nnter 
of  one  of  them — licentious  and  virulent  beyond  all  former  example — 
to  his  good  behavior;  but  he  still  perseveres  in  his  nefarious  publica- 
tions. He  has  ransacked  our  language  for  terms  of  insult  and  reproach, 
and  for  the  basest  accusations  against  every  ruler  and  distinguished 
character  in  France  and  Spain  with  whom  we  chance  to  have  any  in- 
tercourse, which  it  is  scarce  in  nature  to  forgive.  In  brief,  he  braves 
his  recognizance  and  the  laws.  It  is  now  with  you,  gentlemen  of  the 
grand  jury,  to  animadvert  on  his  conduct.  Without  your  aid  it  cannot 
be  corrected.  The  Government  that  will  not  discountenance,  may  be 
thought  to  adopt  it,  and  be  justly  chargeable  with  all  the  consequences. 

'"Every  nation  ought  to  avoid  giving  any  real  oiiense  to  another. 
Some  medals  and  dull  jests  are  mentioned  and  represented  as  a  ground 
of  quarrel  between  the  English  and  Butch  in  IGTli,  and  likewise  called 
Louis  the  XIV  to  make  an  expedition  into  the  United  Provinces  of  the 
Netherlands  in  the  same  year,  and  nearly  ruined  the  Commonwealth. 

'"  We  are  sorry  to  find  our  endeavors  in  this  way  have  not  been  at- 
tended with  all  the  good  effects  that  were  expected  from  them.  How- 
ever, we  are  determined  to  pursue  the  prevailing  vice  of  the  times  with 
zeal  and  indignation,  that  crimes  may  no  longer  appear  less  odious  for 
being  lashionable,  nor  the  more  secure  from  punishment  from  being 
popular.'     (See  W^hart.  St.  Tr.,  325  ;  Whart.  Cr.  L.,  §  1612a.) 

"The  bill  against  Cobbett  was  ignored  by  the  grand  jury,  as,  under 
the  circumstances,  might  have  been  expected.  The  party  contest  be- 
tween the  friends  of  a  French  and  the  friends  of  an  English  alliance 
was  then  at  its  height,  and  never  was  there  a  party  couijuest  more  bit- 
ter and  more  unscrupulous.  The  prosecution  was  instituted  no  doubt 
by  persons  in  sympathy  with  the  Democratic  party,  and  the  bill  was 
signed  by  Mr.  Jared  Ingersoll,  then  the  Democratic  attorney-general 
of  Pennsylvania,  and  it  was  not  to  be  expected  that  those  members  of 
the  grand  jury  who  detested  France  would  give  it  their  votes.  But 
while  this  explains  the  ignoring  of  the  bill  against  Cobbett,  on  the 
same  principle  as  may  be  explained  the  verdict  of  acquittal  in  Ber- 
nard's case,  the  result  does  not  in  any  way  affect  the  authority  of  Chief 
Justice  McKean's  ruling  as  a  matter  of  law.  He  was  not  only  a  learned, 
well-trained,  and  experienced  lawyer,  but  he  was  thoroughly  familiar 
with  the  history  of  our  institutions,  and  with  the  relation  of  the  States  to 
the  Federal  Government  and  to  European  sovereignties.  He  had  been 
for  seventeen  years  a  member  of  the  Pennsylvania  legislature.  He 
was  the  only  member  of  the  Continental  Congress  who  remained  in 
continuous  service  during  the  whole  llevolutiouary  war.  He  was  a 
signer  of  the  Declaration  of  Independence.  He  was  President  of  the 
Congress  in  1781.  He  was  chief  justice  of  Pennsylvania  from  1777  to 
1799,  and  during  that  long  period  he  was  regarded  by  the  bar  of  Phila- 
delphia, a  bar  of  singular  learning  and  cultivation,  as  a  master  in  juris- 
prudence, and  as  a  judge  who  never  permitted  himself  to  be  swayed 
by  partisan  or  personal  temper.  Xor  was  there  at  that  time  any  dis- 
sent from  the  position  that  if  libels  on  foreign  countries  were  published 
in  the  State  of  Pennsylvania,  it  was  the  function  of  the  State  of  Penn- 
sylvania to  prosecute  the  authors  of  these  libels.     Congress,  in  Mr. 

267 


§^  56a,  57.]  INTERVENTION.  [chap.  III. 

Adams's  adniinistration,  did  not  hesitate  to  pass  a  statute  makinjr  'sedi- 
tious libels'  iiulietablc  in  Federal  courts,  but  it  limited  its  action  to  such 
libels  as  attacked  tlie  Fedei-al  system.  Libels  on  foreign  powers  were 
left  to  the  action  of  the  several  States,  and  within  the  jurisdiction  of 
such  States  they  still  remain." 

t)  Crim.  Law  Mag.,  176. 

(13)  Charitable  contributions  abroad. 

§  56a. 

Official  contributions  to  charitable  objects  do  not  not  fall  within  the 
range  of  Congressional  or  Executive  power.  But  favors  may  be  granted 
in  aid  of  such  objects  by  special  passports,  or,  in  certain  cases,  by  re- 
missions of  duty.  "  Of  such  a  character  was  the  assistance  rendered  by 
the  Government  of  the  United  States  for  transporting  to  Ireland  the 
contributions  of  provisions  spontaneously  offered  by  the  American 
people." 

I  Halleck,  Int.  Law  (by  Baker),  407. 

III.  IXTEEFENTION  OF  EUROPEAN  SOVEREIGNS  IN  AFFAIRS  OF  THIS 
CONTINENT  DISAPPROVED— MONROE  DOCTRINE. 

§57. 

The  "Holy  Alliance"  took  formal  shape  in  a  treaty  signed  at  Paris 
on  September  26,1815,  between  the  Emx>erors  of  Austria  and  of  Eussia 
and  the  King  of  Prussia,  acting  as  absolute  sovereigns,  without  the  in- 
tervention of  responsible  ministers  or  diplomatic  agents.  Great  Britain 
took  no  part  in  this  alliance  (although  George  lY,  then  Prince  Regent, 
no  doubt  personally  sympathized  with  it),  for  the  reason  that  by  the 
constitution  of  Great  Britain  the  sovereign  can  only  act  through  re- 
sponsible ministers.  The  ostensible  object  of  the  alliance  was  the  sub- 
ordination of  ])olitics  to  the  Christian  religiou.  The  real  principle, 
however,  was  the  establishment  of  jure  divino  autocracies,  each  sovereign 
incorporating  in  liimself  "the  Christian  religion"  as  well  as  supreme 
political  power.  Had  the  three  sovereigns  Avho  originated  the  scheme 
been  able  to  agree,  they  might  have  dominated  the  civilized  world.  But, 
from  the  nature  of  things,  three  jure  dii-'mo  autocrats,  each  claiming  for 
his  opinions  divine  authority,  could  not  be  expected  to  agree  perma- 
nei»tly;  and  so  it  ultimately  turned  out. 

Mr.  Canning,  in  his  correspondence  with  Mr.  Rush,  our  minister  in 
England,  in  bS2;>,  having  suggested  that  the  United  States  should  take 
decided  ground  against  the  intervention  of  the  Holy  Alliance  in  South 
AnuMK-a,  Mr.  Monroe  sent  the  papers  to  Mr.  Jefferson,  asking  his  advice. 
To  this  request  Mr.  Jefferson  answered  as  follows: 

"  MoNTicELLO,  October  24,  1823. 
"  Dear  Sir  :  The  question  presented  by  the  letters  you  have  sent 
me  is  tlu'  most  momentous  which  has  ever'  been  offered  to  mv  contem- 
plation since  that  of  Independence.  That  made  us  a  nation  •  this  sets 
our  comi)ass  and  points  the  course  which  we  are  to  steer  through  the 
ocean  of  time  o])ening  on  us.  And  never  could  we  embark  upon  it  un- 
263 


CHAP.  III.]  MONROE    DOCTRINE.  [§57. 

der  circumstauces  more  auspicious.  Our  first  and  fundamental  maxim 
should  be  never  to  entangle  ourselves  in  the  broils  of  Europe ;  our  sec- 
ond, never  to  suffer  Europe  to  intermeddle  with  cis-Atlantic  affairs. 
America,  North  and  South,  has  a  set  of  interests  distinct  froiu  those  of 
Europe,  and  peculiarly  her  own.  She  should,  therefore,  have  a  system 
of  her  own,  separate  and  ai)art  from  that  of  Earoi)e.  While  the  last  is 
laboring;'  to  become  the  domicile  of  despotism,  our  endeavor  should 
surely  be  to  make  our  hemisphere  that  of  freedom. 

"One  nation,  most  of  all,  could  disturb  us  in  this  pursuit;  she  now 
offers  to  lead,  aid,  and  accomi)any  us  in  it.  I>y  accedingto  her  proi)o- 
sition  we  detach  her  from  the  bands,  bring  her  mighty  weight  into  the 
scale  of  free  government,  and  emancipate  a  continent  at  one  stroke, 
which  might  otherwise  linger  long  in  doubt  anddifliculty.  Great  Brit- 
ain is  the  nation  which  can  do  us  the  most  harm  of  any  one  or  all  on 
earth,  and  with  her  on  our  side  we  need  not  fear  the  whole  world. 
With  her,  then,  we  should  most  seduously  cherish  a  cordial  friendship, 
and  nothing  would  tend  more  to  knit  our  affections  than  to  be  fighting 
once  more  side  by  side  in  the  same  cause.  Not  that  I  would  purchase 
even  her  amity  at  the  price  of  taking  part  in  her  wars. 

"  But  the  war  in  which  the  present  proposition  might  engage  us, 
should  that  be  its  consequence,  is  not  her  war,  but  ours.  Its  object  is 
to  introduce  and  establish  the  American  system  of  keeping  out  of  our 
land  all  foreign  powers — of  never  permitting  those  of  Europe  to  inter- 
meddle with  the  aff'airs  of  our  nations.  It  is  to  maintain  our  own  pvin- 
ciple,  not  to  dei)art  from  it ;  and  if,  to  facilitate  this,  we  can  effect  a 
division  in  the  body  of  the  European  powers  and  draw  over  to  our  side 
its  most  powerful  member,  surely  we  should  do  it.  But  I  am  clearly  of 
Mr.  Canning's  opinion  that  it  will  present  instead  of  i)rov()king  war. 
With  Great  Britain  withdrawn  from  their  scale  and  shifted  into  that  of 
our  two  continents,  all  Europe  combined  would  not  undertake  such  a 
war,  for  how  would  they  propose  to  get  at  either  enemy  without  superior 
fleets?  Nor  is  the  occasion  to  be  slighted  which  this  proi)Osition  offers 
of  declaring  our  protest  against  the  atrocious  violations  of  the  rights  of 
nations  by  the  interference  of  any  one  in  the  internal  affairs  of  another 
so  flagitiously  begun  by  Bonaparte,  and  now  continued  by  the  equally 
lawless  Alliance  calling  itself  Holy. 

"  But  we  have  first  to  ask  ourselves  a  question.  Do  we  wish  to  ac- 
quire to  our  own  confederacy  any  one  or  more  of  the  Spanish  ])rovinces  ? 
I  candidly  confess  that  I  have  ever  looked  on  Cuba  as  the  most  inter- 
esting addition  which  could  ever  be  made  to  our  system  of  States.  The 
control  which,  with  Elorida  Point,  this  island  would  give  us  over  the 
Gulf  of  Mexico  and  the  countries  and  isthmus  bordering  on  it,  as  well 
as  all  those  whose  waters  flow  into  it,  would  till  up  the  measure  of  our 
political  well-being.  Yet,  as  I  am  sensible  that  this  can  never  be  ob- 
tained, even  with  her  own  consent,  but  by  war,  and  its  indepen<lence, 
which  is  our  second  interest  (and  especndly  its  independence  of  Eng- 
land), can  be  secured  witliout  it,  I  have  no  hesitation  in  abandon>iig'my 
first  wish  to  future  chances,  and  accepting  its  independence,  with  i)eace 
and  the  friendship  of  England,  rather  than  its  association  at  the  expense 
of  war  and  her  enmity. 

"  I  could  honestly,  therefore,  join  in  the  declaration  j)roposed  that  we 
aim  not  at  th*e  acquisition  of  any  of  those  ])ossessions — that  we  Avill  not 
stand  in  the- way  of  any  amicable  arrangenjent  between  them  and  the 
mother  country — but  that  we  will  oppose  with  all  our  means  the  forcible 

269 


§  57.]  INTERVENTION.  [CHAP.  III. 

iDterposition  of  auy  other  power  as  auxiliary,  stipendiary,  or  under  any 
other  form  or  pretext,  and  most  especially  their  transfer  to  any  power 
by  conquest,  cession,  or  acquisition  in  any  other  way.  I  should  think 
it,  therefore,  advisable  that  the  Executive  should  encourajje  the  British 
Government  to  a  continuance  in  the  dispositions  expressed  in  these  let- 
ters by  an  assurance  of  his  concurrence  with  them  as  far  as  his  authority 
goes,  aiul  that  as  it  may  lead  to  war,  the  declaration  of  which  requires 
an  act  of  Conoress,  the  case  shall  be  laid  before  them  for  consideration 
at  their  first  meeting,  and  under  the  reasonable  aspect  in  which  it  is 
seen  by  himself. 

"  1  have  been  so  long  weiined  from  i>olitical  subjects,  and  have  so  long 
ceased  to  take  any  interest  in  them,  that  I  am  sensible  I  am  not  quali- 
fied to  offer  opinions  on  them  worthy  of  any  attention ;  but  the  ques- 
tion how  proi)Osed  involves  consequences  so  lasting,  and  effects  so  deci- 
sive of  our  future  destinies,  as  to  rekindle  all  the  interest  I  have  hereto- 
fore felt  on  such  occasions,  and  to  induce  me  to  the  hazard  of  opinions 
which  will  prove  only  my  wish  to  contribute  still  my  mite  toward  any- 
thing which  may  be  useful  to  our  countrj\  And,  praying  you  to  accept 
it  at  only  what  it  is  worth,  I  add  the  assurance  of  mj'  constant  and  affec- 
tionate friendship  and  respect.'' 

7  Jeff.  Works,  315. 

Mr.  Madison,  being  consulted  at  the  same  time,  through  Mr.  Jeffer- 
son, answered  as  follows: 

TO   PRESIDENT  MOXROE. 

October  30,  1823. 

"Dear  Sir:  I  have  just  received  from  Mr,  Jefferson  your  letter  to 
him,  with  the  correspondence  between  Mr.  Canning  and  Mr.  Kush,  sent 
for  his  and  my  perusal  and  our  opinions  on  the  subject  of  it. 

"  From  the  disclosures  of  Mr.  Canning,  it  appears,  as  was  otherwise  to 
be  inferred,  that  the  success  of  France  against  Spain  would  be  followed 
by  an  attempt  of  the  holy  allies  to  reduce  the  revolutionized  colonies 
of  the  latter  to  their  former  dependence. 

"The  professions  we  have  made  to  these  neighbors,  our  sympathies 
with  their  liberties  and  independence,  the  deep  "interest  we  have  in  the 
most  friendly  relations  with  them,  and  the  consequences  threatened  by 
a  command  of  their  resources  by  the  great  powers,  confederated  against 
the  rights  and  reforms  of  which  we  have  given  so  conspicuous  and  per- 
suasive an  example,  all  unite  in  calling  for  our  efforts  to  defeat  the 
meditated  crusade.  It  is  parti(;ularly  fortunate  that  the  policy  of  Great 
Britain,  though  guided  by  calculations  different  from  ours",  has  pre- 
sented a  co-ojjeration  for  an  object  the  same  with  ours.  With  that  co- 
operation we  have  nothing  to  fear  from  the  rest  of  Europe,  and  with  it 
the  best  assurance  of  success  to  our  laudable  views.  There  ought  not, 
therefore,  to  be  any  backwardness,  I  think,  in  meeting  her  in  the  way 
she  has  i)rop()sed,  keeping  in  view,  of  course,  the  spirit  and  forms  of  the 
Constitution  in  every  step  taken  in  the  road  to  war,  which  must  be  the 
last  step  if  those  short  of  war  should  be  without  avail. 

"  It  cannot  be  doubted  that  :Mr.  Canning's  proposal,  though  made  with 
the  air  of  consultation,  as  well  as  concert,  wasfounded  oh  a  i)redeter- 
mination  to  take  the  course  marked  out,  whatever  might  be  the  recep- 
tion given  here  to  his  invitation.  But  this  consideration  ought  not  to 
270 


CHAP.  III.]  MONROE    DOCTRINE.  [§  57. 

divert  us  Irom  what  is  just  and  proper  in  itself.  Our  co-operation  is 
due  to  ourselves  and  to  the  woild,  and  while  it  must  insure  success  in 
the  event  of  an  appeal  to  force,  it  doubles  the  chance  of  success  with- 
out that  appeal.  It  is  not  improbable  that  Great  IJritain  would  like 
best  to  have  the  merit  of  being  the  sole  champion  of  her  new  friends, 
notwithstanding  the  greater  difliculty  to  be  encountered,  but  for  the 
dilemma  in  which  she  would  be  placed.  She  must,  in  that  case,  either 
leave  us,  as  neutrals,  to  extend  our  commerce  and  navigation  at  the 
expense  of  hers,  or  make  us  enemies  by  renewing  her  paper  blockades 
and  other  arbitrary  proceedings  on  the  ocean.  It  may  be  hoped  that 
such  a  dilemma  will  not  be  without  a  permanent  tendency  to  check  her 
proneness  to  unnecessary  wars. 

"  Why  the  British  Cabinet  should  have  scrupled  to  arrest  the  calamity 
it  now  apprehends  by  applying  to  the  threats  of  France  against  Spain 
the  small  eftbrt  which  it  scruples  not  to  employ  in  behalf  of  Spanish 
America,  is  best  known  to  itself.  It  is  difficult  to  find  any  other  ex- 
planation than  that  interest  in  the  one  case  has  more  weight  in  its 
casuistry  than  principle  had  in  the  other. 

"Will  it  not  be  honorable  to  our  country,  and  possibly  not  altogether 
in  vain,  to  invite  the  British  Government  to  extend  the  'avowed  dis- 
approbation' of  the  project  against  the  Spanish  colonies  to  the  enter- 
prise of  France  against  Spain  herself,  and  even  to  join  in  some  declara- 
tory act  in  behalf  of  the  Greeks'?  On  the  supposition  that  no  form 
could  be  given  to  the  act  clearing  it  of  a  pledge  to  follow  it  up  by  war, 
we  ought  to  compare  the  good  to  be  done  with  the  little  injury  to  be 
apprehended  to  the  United  States,  shielded  as  their  interests  would  be 
by  the  power  and  the  fleets  of  Great  Britain  united  with  their  own. 
These  are  questions,  however,  which  may  require  more  information  than 
I  jiossess,  and  more  reflection  than  I  can  now  give  them. 

"  What  is  the  extent  of  Mr.  Canning's  disclaimer  as  to  the  'remaining 
possessions  of  Spain  in  America.  Does  it  exclude  future  views  of  ac- 
quiring Porto  Eico,  &c.,  as  well  as  Cuba?  It  leaves  Great  Britain  free, 
as  I  understand  it,  in  relation  to  other  quarters  of  the  globe." 

TO  MR.    JEFFERSON. 

MoNTPELiEK,  N'ovemher  1,  1823. 
"Dear  Sir:  I  return  the  letter  of  the  President.  The  correspond- 
ence from  abroad  has  gone  back  to  him,  as  you  desired.  I  have  ex- 
pressed to  him  my  concurrence  in  the  policy  of  Tueeting  the  advances 
of  the  British  Government,  having  an  eye  to  the  forms  of  our  Constitu- 
tion in  every  step  in  the  road  to  war.  With  the  British  power  and  navy 
combined  with  our  own,  we  have  nothing  to  fear  from  the  rest  of  the 
world,  and  in  the  great  struggle  of  the  epoch  between  liberty  and  des- 
potism, we  owe  it  to  ourselves  to  sustiiin  the  former,  in  this  hemisphere 
at  least.  I  have  even  suggested  an  invitation  to  the  British  Govern- 
ment to  join  in  applying  the  "small  eflbrt  for  so  much  good"  to  the 
French  invasion  of  Spain,  and  to  make  Greece  an  object  of  some  such 
ftivorable  attention.  Why  Mr.  Canning  and  his  colleague  did  not  sooner 
interpose  against  the  calamity,  which  could  not  have  escaped  foresight, 
cannot  be  otherwise  explained  but  by  the  different  aspect  of  the  ques- 
tion when  it  related  to  liberty  in  Spain,  and  to  the  extension  of  British 
commerce  to  her  former  colonies." 
3  Madison's  Writings,  339. 

271 


§  57.]  INTERVENTION.  [CHAP.  III. 

The  following  is  from  a  "private"  letter  from  Mr.  Cauuing,  on  De- 
cember 21,  1823,  to  Sir  William  h  Court,  British  minister  at  Spain 
(Sta])1eton's  Canning  and  his  Times,  395):  "Monarchy  in  Mexico  and 
monarchy  in  Brazil  would  cure  the  evils  of  universal  democracy  and 
prevent  the  drawing  of  demarkation  M'hich  I  most  dread — America 
vs.  Euro])e.  The  United  States,  naturally  enough,  aim  at  this  divis- 
ion, and  cln^rish  the  democracy  which  leads  to  it.  But  I  do  not  much 
apprehend  their  influence,  even  if  I  believe  (which  I  do  not  altogether) 
in  all  the  re])orts  of  their  activity  in  America.  Mexico  and  they  are 
too  neighborjy  to  be  friends.  In  the  meanwhile  they  have  aided  us 
n)aterially.  *  *  *  While  I  was  yet  hesitating  (in  September)  what 
siiape  to  give  to  the  declaration  and  protest  which  ultimately  was  con- 
veyed in  my  conference  with  P.  de  Polignac,  and  while  I  was  more 
doubtful  as  to  the  effect  of  that  protest  and  declaration,  I  sounded  Mr. 
Hush  (the  American  minister  here)  as  to  his  powers  and  disposition  to 
join  in  any  stej)  which  we  might  take  to  prevent  a  hostile  enterprise  on 
the  part  of  the  European  powers  against  Spanish  America.  He  had  no 
powers;  but  he  would  have  taken  upon  himself  to  join  with  us,  if  we 
would  have  begun  by  recognizing  the  Spanish-American  States.  This 
we  could  not  do,  and  so  we  went  on  without.  But  1  have  no  doubt  that 
his  report  to  his  Government  of  this  sounding,  which  he  probably  rep- 
resented as  an  overture,  had  a  great  share  in  producing  the  explicit 
declaration  of  the  President." 

As  Mr.  Stapleton  remarks,  Mr.  Canning's  position  was  simply  that 
Great  Britain  would  not  permit  other  European  powers  to  interfere  on 
behalf  of  Spain  in  her  contest  with  her  American  colonies.  So  far  from 
assenting  to  the  position  that  the  "unoccupied  parts  of  America  are 
no  longer  open  to  colonization  from  Europe,"  he  held  that  "the  United 
States  had  no  right  to  take  umbrage  at  the  establishment  of  new  colonies 
from  Europe  on  any  such  unoccupied  parts  of  the  American  continent." 

The  Holy  Alliance,  at  the  period  when  Mr.  Canning's  conference  with 
Mr.  Rush  took  ])lace,  acted  vigorously.  They  united  in  sustaining  the 
Bourbons  in  ^S^aples,  where  they  re-established  the  Bourbon  dynasty  on 
the  basis  of  absolutism,  against  the  faint  protest  of  France  and  the 
sullen  disapproval  of  England.  Meeting  again  at  Verona  in  1822,  they 
guaranteed  the  intervention  of  France  in.  Spain,  although  the  British 
ministry  gave  still  more  ominous  signs  of  disapproval,  which  finally  ex- 
hibited themselves  in  utterances  of  the  British  cabinet  to  the  effect 
that  they  would  not  look  with  indifference  at  any  intervention  of  the 
Alliance  in  the  affairs  of  South  America.  It  is  by  the  possibility  of  the 
Alliance  undertaking  such  intervention  that  the  correspondence  here 
given  is  to  be  explained.  The  Government  of  the  United  States  was 
deteiinined  to  resist  such  intervention,  and  in  such  resistance, if  wisely 
conducted,  it  had  every  reason  to  expect  the  assistance  of  Great  Brit- 
ain. The  terms,  however,  i)i  which  this  position  was  epci)ressed  by  Mr. 
Monroe  differed  only  in  form  from  those  in  which  the  relations  of  the 
United  States  to  European  Gov^^rnments  had  been  defined  i)reviouslv 
by  3Ir.  Jefferson.  Mr.  Jefferson  to  Mr.  Short,  Nov.  24,  1701,  3  Jeff. 
Works,  302;  to  Mr.  Paine,  March  18,  lSOl-%  id.,  310 :  to  Mr.  Short, 
Oct.  3,  1801-'4,  id.,  413;  see  supra,  §45. 

The  Emperor  of  Russia  having  suggested,  eailv  in  1820,  that  the 
United  States  should  join  the  Holy  Alliance,  the  'following  response 
was  made :  "The  political  system  of  the  United  States  is  essentially 

273 


CHAP.  III.]  MONEOE    DOCTRINE.  [§  57. 

extra-Earopean.  To  stand  in  fiini  and  cautious  independence  of  all 
entanglement  in  tbe  Enropean  system,  has  been  a  cardinal  point  of 
their  policy  under  every  administration  of  their  Government  from  the 
peace  of  1783  to  this  day."  For  this,  if  for  no  other  reasons,  the  request 
of  Russia,  that  the  United  States  should  become  a  party  to  the  Holy 
Alliance,  should  be  declined. 

Mr.  J.  Q.  Adams,  Sec.  of  State,  to  Mr.  Middletou,  July  5,  1620;  MSS.  Inst., 
Russia. 

In  Mr.  Monroe's  seventh  annual  message,  delivered  on  December  2, 
1823,  the  doctrine,  afterwards  called  by  his  name,  was  thus  expressed : 

"  At  the  proposal  of  the  Russian  Imperial  Government,  made  through 
the  minister  of  the  Emi)eror  residing  here,  a  full  power  and  instructions 
have  been  transmitted  to  the  minister  of  the  United  States  at  St.  Peters- 
burg to  arrange,  by  amicable  negotiation,  the  respective  rights  and  in- 
terests of  the  two  nations  ou  tlie  northwest  coast  of  this  continent.  A 
similar  proposal  had  been  made  by  his  Imperial  Majesty  to  the  Govern- 
ment of  Great  Britain,  which  has  likewise  been  acceded  to.  The  Gov- 
ernment of  the  United  States  has  been  desirous,  by  this  friendly  pro- 
ceeding, of  manifesting  the  great  value  which  they  have  invariably  at- 
tached to  the  friendship  of  the  Emperor,  and  their  solicitude  to  cultivate 
the  best  understanding  with  his  Government.  lu  the  discussions  to 
which  this  interest  has  given  rise  and  in  the  arrangements  by  which 
they  may  terminate,  the  occasion  has  been  judged  proper  for  asserting, 
as  a  principle  in  which  the  rights  and  interests  of  the  United  States  are 
involved,  that  the  American  continents,  by  the  free  and  independent 
condition  which  they  have  assumed  and  maintain,  are  henceforth  not 
to  be  considered  as  subjects  for  future  colonization  by  any  European 
powers. 

*'  It  was  stated  at  the  commencement  of  the  last  session  that  a  great 
effort  was  then  making  in  Spain  and  Portugal  to  improve  the  condition 
of  the  peoi)le  of  those  countries,  and  that  it  appears  to  be  conducted 
with  extraordinary  moderation.  It  need  scarcely  be  remarked  that  the 
result  has  been  so  far  very  different  from  what  was  then  anticipated. 
Of  events  in  that  quarter  of  the  globe,  with  which  we  have  so  much  in- 
tercourse, and  from  which  we  derive  our  origin,  we  have  always'beeu 
anxious  and  interested  spectators.  The  citizens  of  the  United  States 
cherish  sentiments  the  most  friendly  in  favor  of  the  liberty  and  happiness 
of  their  fellow-;nen  on  that  side  of  the  Atlantic.  In  the  wars  of  the  Eu- 
ropean powers,  in  matters  relating  to  themselves,  we  have  never  taken 
any  part,  nor  does  it  comport  with  our  policy  to  do  so.  It  is  only  when 
our  rights  are  invaded  or  seriously  menaced  that  we  resent  injuries  or 
make  preparation  for  our  defense.  With  the  movements  in  this  hemi- 
sphere we  are  of  necessity  more  immediately  connected,  and  by  causes 
which  must  be  obvious  to  all  enlightened  and  impartial  observers. 

"The  political  system  of  the  allied  powers  is  essentially  different  in 
this  respect  from  that  of  America.    This  difference  proceeds  from  that 

S.  Mis.  102— VOL,  I 18  273 


§  57.]  INTERVENTION.  [CHAP.  III. 

■which  exists  in  their  respective  Governments.  And  to  the  defense  of 
our  own,  which  has  been  achieved  bj  the  loss  of  so  much  blood  and 
treasure,  and  matured  bj^  the  wisdom  of  their  most  enlightened  citi- 
zens, and  under  which  we  have  enjoyed  unexampled  felicity,  this  whole 
nation  is  devoted.  We  owe  it,  therefore,  to  candor  and  to  the  amicable 
relations  existing-  between '  the  United  States  and  those  powers  to  de- 
clare that  we  should  consider  any  attempt  on  their  part  to  extend  their 
system  to  any  iwrtion  of  this  hemisphere  as  dangerous  to  our  i^eace  and 
safety.  With  the  existing  colonies  or  dependencies  of  any  European 
power  we  have  not  interfered,  and  shall  not  interfere.'  But  with  the 
Governments  who  have  declared  their  independence  and  maintained  it, 
and  whose  independence  we  have,  on  great  consideration  and  on  just 
principles,  acknowledged,  we  could  not  view  any  interposition  for  the 
purpose  of  oppressing  them,  or  controlling  in  any  other  manner  their 
destiny,  by  any  European  power,  in  any  other  light  than  as  the  mani- 
festation of  an  unfriendly  disposition  toward  the  United  States.  In  the 
war  between  those  new  Governments  and  Spain  we  declared  our  neu- 
trality at  the  time  of  their  recognition,  and  to  this  we  have  adhered,  and 
shall  continue  to  adhere,  provided  no  change  shall  occur  which,  in  the 
indgment  of  the  competent  authorities  of  this  Government,  shall  make 
a  corresponding  change  on  the  part  of  tlie  United  States  indispensable 
to  their  security. 

"  The  late  events  in  Spain  and  Portugal  show  that  Europe  is  still  un- 
seitled.  Of  this  important  fact  no  stronger  i:>roof  can  be  adduced  than 
that  the  allied  powers  should  have  thought  it  proper,  on  a  principle 
satisfactory  to  themselves,  to  have  interposed  hy  force  in  the  internal 
concerns  of  Spain.  To  what  extent  such  interposition  may  be  carried 
on  the  same  principle  is  a  question  to  which  all  independent  powers 
whose  Governments  differ  from  theirs  are  interested,  even  those  most 
remote,  and  surely  none  more  so  than  the  United  States.  Our  policy 
in  regard  to  Europe,  which  was  adopted  at  an  early  stage  of  the  wars 
which  have  so  long  agitated  that  quarter  of  the  globe,  nevertheless  re- 
mains the  same,  which  is  not  to  interfere  in  the  internal  concerns  of  any 
of  its  powers  ;  to  consider  the  Government  de  facto  as  the  legitimate 
Government  for  us  ;  to  cultivate  friendly  relations  with  it,  and  to  pre- 
serve those  relations  by  a  frank,  firm,  and  manly  policy;  meeting,  in  all 
instances,  the  just  claims  of  every  power,  submitting. to  injuries  from 
none.  But  in  regard  to  these  continents,  circumstances  are  eminently 
and  conspicuously  different.  It  is  impossible  that  the  allied  powers 
should  extend  their  i)olitical  system  to  any  portion  of  either  continent 
without  endangering  our  peace  and  happiness  ;  nor  can  anyone  believe 
that  our  southern  brethren,  if  left  to  themselves,  would  adopt  it  of  their 
own  accord.  It  is  equally  impossible,  therefore,  that  we  should  behold 
such  interposition,  in  any  form,  with  iuditierence.  If  we  look  to  the 
comparative  strength  and  resources  of  Spain  and  those  new  Govern- 
ments, and  their  distance  from  each  other,  it  must  be  obvious  that  she 
274 


CHAP.  III.]  MONROE    DOCTRINE.  [§  57. 

can  never  subdue  them.  It  is  still  the  true  policy  of  the  United  States 
to  leave  the  parties  to  themselves,  in  the  hojie  that  other  powers  will 
pursue  the  same  course." 

"  I  did  not  leave  Mr.  de  Chateaubriand  (French  minister  for  foreign  af- 
fairs) without  adverting  to  the  affairs  of  Spain.  That  our  sympathies 
were  entirely  on  her  side,  and  that  we  considered  the  war  made  on  her 
by  France  unjust,  1  did  not  pretend  to  conceal;  but  1  added  that  the 
United  States  would  undoubtedly  preserve  their  neutrality,  provided  it 
was  respected,  and  avoid  every  interference  with  the  politics  of  Europe. 
*  *  *  But  I  had  reason  to  believe  that,  on  the  other  hand,  they  would 
not  suffer  others  to  interfere  against  the  emancipation  of  America." 

Mr.  Gallatin,  minister  to  France,  to  Mr.  J.  Q.  Adams,  Sec.  of  State,  June  24,  1823 ; 
2  Gallatin's  Writings,  271. 

"  At  the  office  Baron  Tuyl  came.  I  told  him  specially  that  we  should 
contest  the  right  of  Russia  to  any  territorial  establishment  on  this  con- 
tinent, and  that  we  should  assume  distinctly  the  i)rincij)le  that  the 
American  continents  are  no  longer  subjects  for  any  new  colonial  estab- 
lishments." 

Mr.  J.  Q.  Adams's  Memoirs,  July  17,  1S2.3;  6  J.  Q.  Adams's  Memoirs,  163. 
As  to  Mr.  Adams's  part  in  formulating  the  "Monroe  doctrine,"  see  82  N.  Am.  Rev., 
494;  Tucker's  Monroe  Doct.,  12-14,  21,  40,  111. 

"January  6.  In  a  dispatch  to  the  Secretary  of  State  of  this  date,  I 
mention  ]\lr.  Canning's  desire  that  the  negotiation  at  St.  Petersburg,  on 
the  Eussiau  ukase  of  September,  1821,  respecting  the  Northwest  coast, 
to  which  the  United  States  and  England  had  equally  objected,  should 
proceed  separately,  and  not  conjointly,  by  the  three  nations,  as  pro- 
posed by  the  [Jnited  States,  and  my  acquiescence  in  this  course.  It  be- 
ing a  departure  from  the  course  my  Government  had  contemplated,  I 
give  the  following  reasons  for  it : 

"  1.  That  whatever  force  of  argument  I  might  be  able  to  give  to  the 
principle  of  non-colonization  as  laid  down  in  the  President's  message, 
which  had  arrived  in  England  since  my  instructions  for  the  negotiation, 
my  opinion  was  that  it  would  still  remain  a  subject  of  contest  between 
the  United  States  and  England;  and  that  as,  by  all  I  could  learn  since 
the  message  arrived,  Russia  also  dissented  from  the  principle,  a  nego- 
tiation at  St.  Petersburg  relative  to  the  Xorthwest  coast,  to  which  the 
three  nations  were  parties,  might  i)lace  Russia  on  the  side  of  England 
and  against  the  United  States,  this,  I  thought,  had  better  be  avoided. 

"2.  That  a  preliminary  and  detached  discussion  of  so  great  a  princi- 
ple, against  which  England  protested  in  limine,  brought  on  by  me  when 
her  foreign  secretary  was  content  to  waive  the  discussion  at  present 
and  preferred  doing  so,  might  have  an  unprojntions  influence  on  other 
parts  of  the  negotiation  of  more  immediate  and  practical  interest. 

"3.  That  by  abstaining  from  discussing  it  at  present  nothing  was 
given  up.  The  principle,  as  promulgated  in  the  President's  message, 
would  remain  undiminished  as  notice  to  other  nations  and  a  guide  to 
me  in  the  general  negotiation  with  England  when  that  came  on." 

Rusb,.Residence  at  the  Court  of  Loudon  :  as  quoted  in  8i  N.  Am.  Rev.  (April, 

18.56),  508. 

"This  message  of  President  Monroe  reached  England  while  the  corre- 
spondence between  Mr.  Canning  and  the  Prince  Polignac  was  in  prog- 

275 


^  57.]  INTERVENTION.  [CHAP.  III. 

ress ;  and  it  was  received  uot  only  with  satisfactiou  but  with  enthusi- 
asm. Mr.  Brougham  said:  'The  question  with  regard  to  South  America 
is  uow,  I  believe,  disposed  of,  or  nearly  so;  for  an  event  has  recently  hap- 
pened than  which  none  has  ever  dispersed  greater  joy,  exultation,  and 
gratitude  over  all  the  free  men  of  Europe ;  that  event,  which  is  decisive 
on  the  subject,  is  the  language  held  with  respect  to  Spanish  America 
in  the  message  of  the  President  of  the  United  States.'  Sir  James  Mack- 
intosh said :  '  This  coincidence  of  the  two  great  English  commonwealths 
(for  so  1  delight  to  call  them ;  and  I  heartily  pray  that  they  may  be 
forever  united  in  the  cause  of  justice  and  liberty)  cannot  be  contem- 
plated without  the  utmost  pleasure  by  every  enlightened  citizen  of  the 
earth.'  This  attitude  of  the  American  Government  gave  a  decisive  sup- 
port to  that  of  Great  Britain,  and  effectually  put  an  end  to  the  designs 
of  the  absolutist  powers  of  the  continent  to  interfere  with  the  aflairs  of 
Spanish  America.  Those  dynasties  had  no  disposition  to  hazard  a  war 
with  such  a  power,  moral  and  material,  as  Great  Britain  and  the  United 
States  would  have  presented,  when  united,  in  the  defense  of  independ- 
ent constitutional  governments. 

"It  is  to  be  borne  in  mind  that  the  declarations  known  as  the  Mon- 
roe doctrine  have  never  received  the  sanction  of  an  act  or  resolution  of 
Congress,  nor  have  they  any  of  that  authority  which  European  Gov- 
ernments attach  to  a  royal  ordinance.  They  are,  in  fact,  only  the  dec- 
larations of  an  existing  Administration  of  what  its  own  policy  would  be, 
and  what  it  thinks  should  ever  be  the  policy  of  the  country,  on  a  sub- 
ject of  paramount  and  permanent  interest.  Thus,  at  the  same  session 
in  which  the  message  was  delivered,  Mr.  Clay  introduced  the  following 
resolution  :  'That  the  people  of  these  States  would  not  see,  without  seri- 
ous inquietude,  any  forcible  interposition  by  the  allied  powers  of  Europe, 
in  behalf  of  Spain,  to  reduce  to  their  former  subjection  those  parts  of 
the  continent  of  America  which  have  proclaimed  and  established  for 
themselves,  respectively,  independent  governments,  and  which  have 
been  solemnly  recognized  by  the  United  States.'  But  this  resolution 
was  never  brought  up  for  action  or  discussion.  It  is  seen,  also,  by  the 
debates  on  the  Panama  mission  and  the  Yucatan  intervention,  that 
Congress  has  never  been  willing  to  commit  the  nation  to  any  compact 
or  pledge  on  this  subject,  or  to  any  specific  declaration  of  purpose  or 
methods,  beyond  the  general  language  of  the  message. 

"  In  the  debates  on  the  Clayton-Bulwer  treaty,  in  1855-'o6,  above  re- 
ferred to,  all  the  speakers  seemed  to  agree  to  this  position  of  the  sub- 
ject. Mr.  Clayton  said  :  '  In  relerence  to  this  particular  territory,  I 
would  not  hesitate  at  all,  as  one  Senator,  to  assert  the  Monroe  doctrine 
and  maintain  it  by  my  vote;  but  I  do  not  expect  to  be  sustained  in  such 
a  vote  by  both  branches  of  Congress.  Whenever  the  attempt  has  been 
made  to  assert  the  Monroe  doctrine  in  either  branch  of  Congress,  it  has 
failed.  The  present  Democratic  party  came  into  jiower,  after  the  debate 
on  the  Panama  mission,  on  the  utter  abnegation  of  the  whole  doctrine, 
and  stood  upon  Washington's  doctrine  of  non-intervention.  You  can- 
not prevail  on  a  majority,  and  I  will  venture  to  say  that  you  cannot 
prevail  on  one-third  of  either  house  of  Congress  to  sustain  it.'  Mr.  Cass 
said  :  '  Whenever  the  Monroe  doctrine  has  been  urged,  either  one  or  the 
other  house  of  Congress,  or  both  houses,  did  not  stand  up  to  it.'  Mr. 
Seward  said:  'It  is  true  that  each  house  of  Congress  has  declined  to 
a«sert  it ;  but  the  honorable  Senators  must  do  each  house  the  justice  to 
acknowledge  that  the  reason  why  they  did  decline  to  assert  the  doc- 
trine was,  lliat  it  was  proposed,  as  many  members  thought,  as  an  ab- 

276 


CHAP.  III.]  M0]ST10E    DOCTRINE.  [$  57. 

stractioii,,niiuecessary,  not  called  for  at  the  time.'  Mr.  Mason  spoke  of 
it  as  having  '  never  been  sanctioned  or  recognized  by  any  constitutional 
autboi  ity.'  Mr.  Cass  afterwards,  in  a  very  elaborate  speech  (of  January 
28,  1850),  gave  his  views  of  the  history  and  character  of  the  doctrine. 
He  placed  it  ni)on  very  high  ground,  as  a  declaration  not  only  against 
European  intervention  or  iuture  colonization,  but  against  the  acquisi- 
tion of  dominion  on  the  continent  by  European  powers,  by  whatever 
mode  or  however  derived;  and  seemed  to  consider  it  as  a  pledge  to 
resist  such  a  result  by  force,  if  necessary,  in  any  part  of  the  continent. 
He  says  :  '  We  ought  years  ago,  by  Congressional  interposition,  to  have 
made  this  system  of  policy  an  American  system,  by  a  solemn  declara- 
tion ;  and  if  we  had  done  so,  we  should  have  spared  ourselves  much 
trouble  and  no  little  mortification.'  Referring  to  Mr.  Polk's  message, 
in  1845,  he  said  there  was  then  an  opportunity  for  Congress  to  adopt  the 
doctrine,  not  as  an  abstraction,  but  on  a  practical  point.  '  We  refused 
to  say  a  word ;  and,  I  repeat,  we  refused  then  even  to  take  the  subject 
into  consideration.'  He  denied  the  correctness  of  Mr.  Calhoun's  expla- 
nation {vide  st(pra),  and  contended  that  the  non-colonization  clause  was 
intended  to  be,  and  understood  by  England  to  be,  a  foreclosure  of  the 
whole  continent  against  all  future  European  dominion,  however  derived. 
It  may  well  be  said,  however,  and  such  seems  now  to  be  the  prevalent 
opinion,  that  the  complaints  of  Mr.  Cass  and  others  of  his  school,  of  the 
neglect  and  abandonment  of  the  Monroe  doctrine,  apply  rather  to  their 
construction  of  the  doctrine  than  to  the  doctrine  itself.    *     *     * 

"  It  has  sometimes  been  assumed  that  the  Monroe  doctrine  contained 
some  declaration  against  any  other  than  democratic-rej^ublican  institu- 
tions on  this  continent,  however  arising  or  introduced.  The  message 
will  be  searched  in  vain  for  anything  of  the  kind.  We  were  the  first 
to  recognize  the  imperial  authority  of  Dom  Pedro,  in  Brazil,  and  of 
Iturbide  in  Mexico ;  and  more  than  half  the  northern  continent  was 
under  the  scepters  of  Great  Britain  and  Russia ;  and  these  dependencies 
would  certainly  be  free  to  adopt  what  institutions  they  pleased,  in  case 
of  successful  rebellion,  or  of  peaceful  separation  from  their  parent 
states.  (See  Mr.  Seward's  correspondence  respecting  Mexico,  from 
1862  to  1800,  as  illustrative  of  the  position  of  the  United  States  at  the 
present  time  on  this  subject,  given  at  length  in  note  41  to  §7G,  infra.) 

"As  a  summary  of  this  subject,  it  would  seem  that  the  following 
positions  may  be  safely  taken  : 

"I.  The  declarations  upon  which  Mr.  Monroe  consulted  Mr.  Jefferson 
and  his  Cabinet  related  to  the  interposition  of  European  powers  in  the 
affairs  of  American  States. 

"  II.  The  kind  of  interposition  declared  against  was  that  which  may 
be  made  for  the  pur[)0se  of  controlling  their  })olitical  affairs,  or  of  ex- 
tending to  this  hemisphere  the  system  in  operation  upon  the  continent 
of  Europe,  by  which  the  great  powers  exercise  a  control  over  the  affairs 
of  other  European  states. 

"III.  The  declarations  do  not  intimate  any  course  of  conduct  to  be 
pursued  in  case  of  such  interpositions,  but  merely  say  that  they  would 
be  'considered  as  dangerous  to  our  peace  and  safety,'  and  as  'the  man- 
ifestation of  an  unfriendly  disposition  towards  the  United  States,' 
which  it  would  be  impossible  for  us  to  'behold  with  indifference;'  thus 
leaving  the  nation  to  act  at  all  times  as  its  opinion  of  its  policy  or  duty 
might  require. 

"IV.  The  declarations  are  only  the  opinion  of  the  administration  of 
1823,  and  have  acquired  no  legal  force  or  sanction. 

277 


§  57.]  INTERVENTION.  [CHAP.  III. 

"  V.  The  United  States  has  never  made  any  alliance  with,  or  pledge  to, 
any  other  American  state  on  the  subject  covered  by  the  declarations. 

"  VI.  The  declaration  respecting  non-colonization  was  on  a  subject  dis- 
tinct from  European  intervention  with  American  states,  and  related  to 
the  acquisition  of  sovereign  title  by  any  European  power,  by  new  and 
original  occui)atiou  or  colonization  thereafter.  Whatever  were  the  po- 
litical motives  for  resisting  such  colonization,  the  principle  of  public 
law  upon  which  it  was  placed  was,  that  the  continent  must  be  consid- 
ered as  already  within  the  occupation  and  jurisdiction  of  independent 
civilized  nations." 

Dana's  Wheatou  ;  §  67,  note  36. 

The  position  that  Mr.  Monroe's  declaration  "was  intended  as  a  caveat  to  the  de- 
signs of  the  allies,  and  as  an  earnest  i>rotest  against  the  extension  to  this 
continent  of  'the political  system'  on  which  they  were  based"  is  supported 
at  length  in  82  N.  Am.  Rev.,  483  (April,  1856).    See  103  id.,  471,  (Oct.,  1866). 

The  failure  to  obtain  Congressional  approval  for  Mr.  Clay's  resolution  "that  the 
people  of  these  States  would  not  gee,  without  serious  inquietude,  forcible 
interposition  by  the  allied  powers  of  Europe,  ou  behalf  of  Spain,"  in  South 
America,  is  noticed  and  explained  in  82  N.  Am.  Rev.,  488  (AprU,  1856). 

"  The  other  principle  asserted  in  the  message  is  that  whilst  we  do  not 
desire  to  interfere  in  Europe  with  the  political  system  of  the  allied 
powers  we  should  regard  as  dangerous  to  our  peace  and  safety  any  at- 
tempt on  their  part  to  extend  their  system  to  any  portion  of  this  hem- 
isphere. The  political  systems  of  the  two  continents  are  essentially 
different.  Each  has  an  exclusive  right  to  judge  for  itself  what  is  best 
suited  to  its  own  condition,  and  most  likely  to  promote  its  happiness, 
but  neither  has  a  right  to  enforce  upon  the  other  the  establishment  of 
its  peculiar  system.  This  priuciple  was  declared  in  the  face  of  the 
world,  at  a  moment  when  there  was  reason  to  apprehend  that  the  allied 
powers  were  entertaining  designs  inimical  to  the  freedom,  if  not  the  inde- 
pendence, of  the  new  governments.  There  is  a  ground  for  believing 
that  the  declaration  of  it  had  considerable  effect  in  preventing  the  ma- 
turity, if  not  in  producing  the  abandonment  of  all  such  designs.  Both 
principles  were  laid  down  after  much  and  anxious  deliberation  on  the 
part  of  the  late  administration.  The  President,  who  then  formed  a 
part  of  it,  continues  entirely  to  coincide  in  both.  And  you  will  urge 
upon  the  Government  of  Mexico  the  utility  and  expediency  of  asserting 
the  same  princii)les  on  all  proper  occasions." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Poinsett,  Mar.  26,  18<io;  MSS.  Inst.  Ministers. 

The  same  position  was  taken  by  ill-.  Clay  in  letters  to  the  Ministers  to  other 
South  American  states. 

"  The  late  President  of  the  United  States,  in  his  message  to  Congress 
of  the  2d  of  December,  1823,  while  announcing  the  negotiation  then 
pending  with  Kussia,  relating  to  the  northwest  coast  of  this  continent, 
observes  that  the  occasion  of  the  discussions  to  which  that  incident  had 
given  rise,  had  been  taken  for  asserting,  as  a  priuciple  in  which  the 
rights  and  interests  of  the  United  States  were  involved,  that  the  Amer- 
ican continents,  by  the  free  and  independent  condition  which  they  had 
278 


CHAP.  III.]  MONROE    DOCTRINE.  [§  57. 

assumed  and  maintained,  were  thenceforward  not  to  be  considered 
subjects  for  colonization  by  any  European  power.  The  iirinciple  had 
first  been  assumed  in  that  negotiation  witli  Russia.  It  rested  upon  a 
course  of  reasoning,  equally  simple  and  conclusive.  With  the  exception 
of  the  existing  European  colonies,  which  it  was  ifi  nowise  intended  to 
disturb,  the  two  continents  consisted  of  several  sovereign  and  inde- 
pendent nations,  whose  territories  covered  their  whole  surface.  By 
this,  their  independent  condition,  the  United  States  enjoyed  the  right 
of  commercial  intercourse  with  every  part  of  their  possessions.  To  at- 
tempt the  establishment  of  a  colony  in  those  possessions,  would  be  to 
usurp,  to  the  exclusion  of  others,  a  commercial  intercourse  which  was 
the  common  possession  of  all.  It  could  not  be  done  without  encroach- 
ing uj^on  existing  rights  of  the  United  States.  The  Government  of 
Russia  has  never  disputed  these  positions,  nor  manifested  the  slightest 
dissatisfaction  at  their  having  been  taken.  Most  of  the  new  American 
republics  have  declared  their  entire  assent  to  them  j  and  they  now  i)ro- 
pose,  among  the  subjects  of  consultation  at  Panama,  to  take  into  con- 
sideration the  means  of  making  effectual  the  assertion  of  that  principle, 
as  well  as  the  means  of  resisting  interference  from  abroad  with  the 
domestic  concerns  of  the  American  governments." 

President  John  Q.  Adams's  Special  Message,  March.  15, 1626. 

As  to  Congress  of  Panama,  see  House  Doc.  No.  443,  19th  Cong.,  2d  sess.  ;  6  Am. 

State  Papers  (For.  Eel.),  356/. 
President  J.  Q.  Adams's  Message  of  Dec.  26,  1825,  giving  the  proceedings  of  the 

Executive  as  to  the  Panama  mission,  and  the  reasons  therefor,  together 

with  the  action  of  the  Senate  thereon,  is  contained  in  Sen.  Ex.  Doc.  No. 

403,  19th  Cong.,  Ist  sess.  ;  5  Am.  State  Papers  (For.  Eel.;,  834. 
The  commissions  of  Messrs.  Anderson  and  Sergeant,  March  14,  1826,  ministers 

to  Panama,  are  given  in  Senate  Doc.  No.  450, 19th  Cong.,  2d  sess. 
The  report  of  Mr.  Clay,  Sec.  of  State,  of  Jan.  31,  1827,  as  to  the  salaries  and 

duties  of  the  ministers  to  Panama  in  1826,  is  contained  in  House  Doc.  No. 

452,  19  Cong.,  2d  sess. ;  6  Am.  State  Papers  (For.  Eel.),  554. 

" '  The  congress  of  Panama,  in  182G,  was  planned  by  Bolivar  to  se- 
cure the  union  of  Spanish  America  against  Spain.  It  had  originally 
military  as  well  as  political  purjioses.  In  the  military  objects  the  United 
States  could  take  no  part ;  and  indeed  the  necessity  for  such  objects 
ceased  when  the  full  effects  of  Sir.  Monroe's  declarations  were  felt.  But 
the  specific  objects  of  the  Congress,  the  establishment  of  close  and  cor- 
dial relations  of  amity,  the  creation  of  commercial  intercourse,  of  inter- 
change of  political  thought,  and  of  habits  of  good  understanding  between 
the  new  Republics  and  the  United  States  and  their  respective  citizens, 
might  perhaps  have  been  attained  had  the  Administration  of  thatday 
received  the  united  support  of  the  country.  Unhappily  they  were  lost; 
the  new  States  were  removed  from  the  sympathetic  and  protecting  in- 
fluence of  our  example,  and  their  commerce,  which  we  might  then  have 
secured,  passed  into  othei*  hands  unfriendly  to  the  United  States. 

" 'In  looking  back  upon  the  Panama  Congress  from  this  length  of 
time  it  is  easy  to  understand  why  the  earnest  and  patriotic  men  who 
endeavored  to  crystallize  an  American  system  for  this  continent  failed. 
*    *     *     One  of  the  questions  j)roposed  for  discussion  in  the  conference 

279 


S^  57.]  INTERVENTION.  [CHAP.  III. 

was  "  The  consideration  of  the  means  to  be  adopted  for  tlie  entire  abo- 
lition of  the  African  slave  trade,"  to  which  proposition  the  committee  of 
the  United  States  Senate  of  that  day  replied  :  "  The  United  States  have 
not  certainly-  the  right,  and  ought  never  to  feel  the  inclination,  to  dic- 
tate to  others  who  may  differ  with  them  upon  this  subject;  nor  do  the 
connnittee  see  the  expediency  of  insulting  other  states  with  whom  we 
are  maintaiuing  relations  of  perfect  amity,  by  ascending  the  moral 
chair,  and  proclaiming  from  thence  mere  abstract  principles,  of  the  rec- 
titude of  which  each  nation  enjoys  the  ])erfect  right  of  deciding  for 
itself"  The  same  committee  also  alluded  to  the  possibility  that  the  con- 
dition of  the  islands  of  Cuba  and  Porto  ilico,  still  the  possessions  of 
Spain,  and  still  slaveholding,  miglit  be  made  the  subject  of  discussion 
and  of  contemplated  action  by  the  Panama  congress.  "  If  ever  the 
United  States  (they  said)  permit  themselves  to  be  associated  with  these 
nations  in  any  general  Congress  assembled  for  the  discussion  of  com- 
mon plans  in  any  way  affecting  European  interests,  they  will,  by  such 
act,  not  only  deprive  theaiselves  of  the  ability  they  now  possess  of  ren- 
dering useful  assistance  to  the  other  American  states,  but  also  pro- 
duce other  effects  prejudicial  to  their  interests."  ' 

"  The  printed  correspondence  respecting  this  mission  will  be  found  in 
the  fifth  volume  of  the  Foreign  Eelations,  folio  edition,  pages  834-905. 
It  was  the  subject  of  animated  discussion  in  Congress,  which  will  be 
found  in  the  second  part  of  the  second  volume  of  the  Eegister  of  Con- 
gressional Debates  for  the  year  1826." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

"  The  amount  of  it  [Mr.  Monroe's  declaration]  was  that  this  Govern- 
ment could  not  look  with  indifference  on  any  combination  to  assist  Spain 
in  her  war  against  the  South  American  states  ;  that  we  could  not  but 
consider  any  such  combination  as  dangerous  or  unfriendly  to  us  ;  and 
that  if  it  should  be  formed  it  would  be  for  the  competent  authoiities 
of  this  Government  to  decide,  when  the  case  arose,  what  course  our 
duty  and  our  interest  should  require  us  to  pursue." 

Mr.  Webster,  Mar.  ?7,  1826,  in  House  of  Rep.  ;  2  Deb.  of  1«26,  1807. 

"  In  December,  1823,  the  then  President  of  the  United  States,  in  his 
annual  message  upon  the  oi)ening  of  Congress,  announced  as  a  princi- 
ple applicable  to  this  continent,  which  ought  hereafter  to  be  insisted  on, 
that  no  European  nation  ought  to  be  allowed  to  plant  upon  it  new  col- 
onies. It  was  not  proposed  by  that  principle  to  disturb  pre-existing 
European  colonies  already  established  iji  America  ;  the  principle  looked 
forward,  not  backward." 

Mr.  Clay,  Sec.  of  State,  to  Messrs.  Anderson  and  Sergeant,  May  8,  1826;  MSS. 
Inst.  Ministers. 

"  It  [the  Monroe  doctrine]  has  been  said,  in  the  course  of  this  debate, 
to  have  been  a  loose  and  vague  declaration.  It  was,  I  believe,  suffi- 
ciently studied.  I  have  understood,  from  good  authoritv,  that  it  was 
considered,  weighed,  and  distinctly  and  decidedlv  approved  bv  every 
one  of  the  President's  advisers  at  that  time.  Our  Governmeul:  could 
not  adopt  on  that  occasion  precisely  the  course  which  England  had 
taken.  England  threatened  the  immc^diate  recognition  of  the  ])roviuces 
if  the  allies  should  take  part  with  Spain  against  them.  We  had  already 
recognized  them.  It  remained,  therefore,  only  for  our  Government  to 
280       . 


CHAP.  III.]  MONROE    DOCTRINE.  [§  57. 

say  bow  we  sliouUl  consider  a  coinl)inatioii  of  the  allied  powers  to  effect 
objects  in  America  as  affectiiij^  ourselves ;  and  tbe  niessagje  was  in- 
tended to  say  wbat  it  does  say,  that  we  should  regard  such  combination 
as  dangerous  to  us.  Sir,  1  agree  with  those  who  maintain  the  proi)Osi- 
tion,  and  I  contend  against  those  who  deny  it,  that  the  message  did 
mean  something;  that  it  meant  much;  and  I  maintain  against  both, 
that  the  declaration  eifected  much  good,  answered  the  end  designed 
by  it,  did  great  honor  to  the  foresight  and  the  si)iritof  the  Government, 
and  that  it  cannot  now  be  taken  hack,  retracted,  or  annulled  without 
disgrace.  It  met,  sir,  with  the  entire  concurrence  and  the  hearty  ap- 
probation of  the  country.  The  tone  which  it  uttered  found  a  corre- 
sponding response  in  the  breasts  of  the  free  people  of  the  United  States. 
That  people  saw,  and  they  rejoiced  to  see,  that,  on  a  fit  occasion,  our 
weight  had  been  thrown  into  tlie  right  scale,  and  that,  without  depart- 
ing from  our  duty,  we  had  done  something  useful,  and  something  effect- 
ual, for  the  cause  of  civil  liberty.  One  general  glow  of  exultation,  one 
universal  feeling  of  the  gratified  love  of  liberty,  one  conscious  and 
proud  perception  of  the  consideration  which  the  country  possessed,  and 
of  the  respect  and  honor  which  belonged  to  it,  pervaded  all  bosoms. 
Possibly  the  ])ublic  enthusiasm  went  too  far  ;  it  certainly  did  go  far ; 
but,  sir,  the  sentiment  which  this  declaration  inspired  was  not  confined 
to  ourselves.  Its  force  was  felt  everywhere  by  all  those  who  could  un- 
derstand its  object  and  foresee  its  effect.  In  that  very  House  of  Com- 
mons of  which  the  gentleman  from  South  Carolina  has  spoken  with 
such  commendation,  how  was  it  received  ?  Not  only,  sir,  with  appro- 
bation, but,  I  may  say,  with  no  little  enthusiasm.  ^Yhile  the  leading 
minister  [Mr.  Canning]  expressed  his  entire  concurrence  in  the  senti- 
ments and  opinionsof  the  American  President,  his  distinguished  competi- 
tor [Mr.  Brougham  j  in  that  jwpular  body,  less  restrained  by  oificial  deco- 
rum, and  more  at  liberty  to  give  utterance  to  all  the  feeling  of  the  occa- 
sion declared  that  no  event  had  ever  created  greater  joy,  exultation,  and 
gratitude  among  all  the  free  men  in  Europe;  that  he  felt  pride  in  being 
connected  by  blood  and  language  with  the  people  of  the  United  States  ; 
that  the  policy  disclosed  by  the  message  became  a  great,  a  free,  and  an 
independent  nation  ;  and  that  he  hoped  his  own  country  would  be  pre- 
vented by  no  mean  i)rideor  paltry  jealousy  from  following  so  noble  and 
glorious  an  example. 

"  It  is  doubtless  true,  as  I  took  occasion  to  observe  the  other  day, 
that  this  declaration  must  be  considered  as  founded  on  our  rights,  and 
to  spring  mainly  from  a  regard  to  their  preservation.  It  did  not  com- 
mit us,  at  all  events,  to  take  up  arms  on  any  indication  of  hostile  feel- 
ing by  the  powers  of  Europe  towards  South  America.  If,  for  exami)le, 
all  the  states  of  Europe  had  refused  to  trade  with  South  America  until 
her  states  should  return  to  their  former  allegiance,  that  would  have 
furnished  no  cause  of  interference  to  us.  Or  if  an  armament  had  been 
furnished  by  the  allies  to  act  against  provinces  the  most  remote  from 
us,  as  Chili  or  Buenos  Ayres,  the  distance  of  the  scene  of  action  dimin- 
ishing our  apprehension  of  danger,  and  diminishing  also  our  means  of 
effectual  interposition,  might  still  have  left  us  to  content  ourselves  with 
remonstrance.  But  a  very  different  case  would  have  arisen,  if  an  army, 
equipped  and  maintained  by  these  powers,  had  been  landed  on  the 
shores  of  the  Gulf  of  Mexico,  and  commenced  the  war  in  our  immediate 
neighborhood.  Such  an  event  might  justly  be  regarded  as  dangerous 
to  ourselves,  and,  on  that  ground,  call  for  decided  and  immediate  inter- 
ference by  us.    The  sentiments  and  the  policy  announced  by  the  declara 

281 


§  57.]  INTERVENTION.  [CHAP.  III. 

tion,  thus  understood,  were,  therefore,  in  strict  conformity  to  our  duties 
and  our  interest." 

Mr.  Webster's  speech  on  tlie  Pauau'a  mission,  April  14, 1826. ;  3  Webster's  Works, 
203. 

When  the  question  of  the  Panama  Congress  was  before  Congress, 
the  following  resolution,  on  motion  of  Mr.  Buchanan,  jjassed  the  House 
of  Representatives  by  a  vote  of  99  to  95 : 

"  It  is,  therefore,  the  opinion  of  this  House  that  the  Government  of 
the  United  States  ought  not"  to  be  represented  at  the  Congress  of  Pan- 
ama, except  in  a  diplomatic  character ;  nor  ought  they  to  form  any  al- 
liance, offensive  or  defensive,  or  negotiate  respecting  such  alliance, 
with  all  or  any  .of  the  South  American  Republics ;  nor  ought  they  to 
become  parties  with  them,  oreither  of  them,  to  any  joint  declaration  for 
the  purpose  of  preventing  the  interference  of  any  of  the  European  pow- 
ers with  their  independence  or  form  of  government,  or  to  any  com- 
l)act  for  the  purpose  of  preventing- colonization  upon  the  continents  of 
America;  but  that  the  people  of  the  United  States  should  be  left  free 
to  act,  in  any  crisis,  in  such  manner  as  their  feeliugs  of  friendship  to- 
wards these  Republics,  and  as  their  own  honor  and  policy,  may  at  the 
time  dictate." 

See  82  North  Am.  Eev.  (Apr.,  1856),  507. 

As  to  subsequent  faihires  to  obtain  Congressional  recognition  of  the  "  Monroe 

doctrine,"  see  Tucker's  Monr.  Doct.,  56. 
The  Panama  Congress  is  discussed  in  1  Calvo.,  Droit  Int.,  2d  ed.,  255. 

"  It  is  well  known  to  the  American  x)eople  and  to  all  nations  that 
this  Government  has  never  interfered  with  the  relations  subsisting  be- 
tween other»Governments.  We  have  never  made  ourselves  parties  to 
their  wars  or  their  alliances ;  we  have  not  sought  their  territories  by 
conquest;  we  have  not  mingled  with  parties  in  their  domestic  struggles; 
and  believing  their  own  form  of  government  to  be  the  best,  we  have 
never  attem])ted  to  propagate  it  by  intrigues,  by  diplomacy,  or  by  force. 
We  may  claim  on  this  continent  a  like  exemption  from  European  inter- 
ference. The  nations  of  America  are  equally  sovereign  and  independ- 
ent with  those  of  Europe.  They  possess  the  same  rights,  independent 
of  all  foreign  interposition,  to  make  war,  to  conclude  peace,  and  to  regu- 
late their  internal  affairs.  The  people  of  the  United  States  cannot, 
therefore,  view  with  indifference  attempts  of  European  powers  to  inter- 
fere with  the  independent  action  of  the  nations  on  this  continent.  The 
American  system  of  government  is  entirely  different  from  that  of  Eu- 
rope. Jealousy  among  the  different  sovereigns  of  Europe,  lest  any  one 
of  them  might  become  too  powerful  for  the  rest,  has  caused  them  anx- 
iously to  desire  the  establishment  of  what  they  term  the  '  balance  of 
power.'  It  cannot  be  permitted  to  have  any  application  on  the  Korth 
American  continent,  and  especially  to  the  United  States.  We  must 
ever  maintain  the  principle  that  the  people  of  this  continent  alone  have 
the  right  to  decide  their  own  destiny.  Sbould  any  portion  of  them,  con- 
stituting  an  independent  state,  propose  to  unite  themselves  with  our 
confederacy,  this  will  be  a  question  for  them  and*  us  todetermine,  with- 
282 


CHAP.  III.]  MONROE   DOCTRINE.  [§  57. 

out  any  foreign  interposition.  We  can  never  consent  that  European 
powers  shall  interfere  to  prevent  such  a  union,  because  it  might  disturb 
the  'balance  of  power'  which  they  may  desire  to  maintain  upon  this 
continent.  IsTear  a  quarter  of  a  century  ago  the  principle  was  distinctly 
announced  to  the  world,  in  the  annual  message  of  one  of  my  predeces- 
sors, that  'the  American  continents,  by  the  free  and  independent  con- 
dition which  they  have  assumed  and  maintain,  are  henceforth  not  to  be 
considered  as  subjects  for  future  colonization  by  any  European  power.' 
This  principle  will  apply  with  greatly  increased  force,  should  any  Euro- 
pean power  attempt  to  establish  any  new  colony  in  Korth  America.  In 
the  existing  circumstances  of  the  world,  the  present  is  deemed  a  proper 
occasion  to  reiterate  and  reaftirm  the  principle  avowed  by  Mr.  Monroe, 
and  to  state  my  cordial  concurrence  in  its  wisdom  and  sound  policy. 
The  reassertion  of  this  principle,  especially  in  reference  to  North  Amer- 
ica, is,  at  this  day,  but  the  promulgation  of  a  policy  which  no  European 
power  should  cherish  the  disposition  to  resist.  Existing  rights  of  every 
European  nation  should  be  respected;  but  it  is  due  alike  to  our  safety 
and  our  interests  that  the  efficient  protection  of  our  laws  should  be  ex- 
tended over  our  whole  territorial  limits,  and  that  it  should  be  distinctly 
announced  to  the  world  as  our  settled  policy  that  no  future  European 
colony  or  dominion  shall,  with  our  consent,  be  planted  or  established  on 
any  part  of  the  North  American  continent." 

President  Polk's  First  Auuual  Message,  1845. 

Mr.  J.  Q.  Adams,  narrating,  in  his  journal  of  December  6, 1845  (12  J. 
Q.  Adams's  Mem.,  218),  a  conversation  with  Mr.  Bancroft,  then  in  Mr. 
Polk's  Cabinet,  thus  speaks:  "I  said  I  approved  entirely  of  Mr.  Polk's 
repeated  assertion  of  the  princii)le  iirst  announced  by  President  James 
Monroe,  in  a  message  to  Congress,  that  the  coutinenrs  of  North  and 
South  America  were  no  longer  to  be  considered  as  scenes  for  future 
European  colonization.  He  said  he  had  heard  that  this  part  of  the 
message  of  Mr.  Monroe  had  been  inserted  by  him  at  my  suggestion.  I 
told  him  that  was  true;  that  I  had  been  authorized  by  liim  to  assert  the 
principle  in  a  letter  of  instruction  to  Mr,  liush,  then  minister  in  P]ng- 
land,  and  had  written  the  paragraph  in  the  very  words  inserted  by  Mr. 
Monroe  in  his  message." 

Mr.  Calhoun's  exposition  of  the  "Monroe  doctrine,"  as  contained 
in  the  annual  message  of  President  Monroe  in  1823,  when  Mr.  Cal- 
houn was  Secretary  of  War,  is  given  in  a  speech  delivered  by  him 
in  the  Senate  on  May  15, 1848,  on  a  bill  to  enable  the  ['resident  to  take 
temporary  military  occui)ation  of  Yucatan,  Mr.  Calhoun,  speaking  of 
the  position  taken  by  Mr.  Monroe  "that  the  United  States  would  regard 
any  attempt  on  the  part  of  the  allied  ])owers  to  extend  their  vsystem  to 
this  country  as  dangerous  to  our  jieace  and  safety,"  thus  states  the 
circumstances  under  which  Mr.  Monroe  made  this  declaration:  "The 
allied  i)0wers  were  the  four  great  continental  monarchies — Pnssia,  I'rus- 
sia,  Austria,  and  France.  Shortly  after  the  overthrow  of  Pona}»arte 
•these  powers  enteied  into  an  alliance  called  the  '  Holy  Alliance,' the 
object  of  which  was  to  sustain  and  extend  monarchical  prineii)les  as  far 
as  possible,  and  to  opi)ress  and  put  down  poj)ular  institutions.     Eng- 

283 


§  57.]  INTERVENTION.  [CHAP.  III. 

land,  ill  tlie  early  stages  of  the  alliance,  favored  it.'  The  members  of 
the  alliance  held  several  congresses,  attended  either  by  themselves  or 
their  ambassadors,  and  undertook  to  regulate  the  affairs  of  all  Europe, 
and  actually  interfered  in  the  affairs  of  Spaiufor  the  purpose  of  putting 
down  poiudar  doctrines.  In  its  progress,  the  alliance  turned  its  eyes 
to  this  continent  in  order  to  aid  Spain  in  regaining  lier  sovereignty  over 
lier  revolted  ])rovinces.  At  this  stage  England  became  alarmed.  Mr. 
Cann  ing  was  then  prime  minister.  He  informed  Mr.  Rush  of  the  project, 
and  gave  him,  at  the  same  time,  the  assurance  that,  if  sustained  by  the 
United  States,  Great  Britain  would  resist.  Mr.  Rush  immediately  com- 
municated this  to  our  Government.  It  was  received  here  with  joy;  for 
so  great  was  the  power  of  the  alliance  that  even  we  did  not  ieel  our- 
selves safe  from  its  interpositions.  *  *  *  I  remember  the  reception  of 
the  dispatch  from  Mr.  Rush  as  distinctly  as  if  all  the  circumstances  had 
occurred  yesterday.  I  well  recollect  the  satisfaction  with  which  it  was 
received  by  the  Cabinet.  It  came  late  in  the  year,  not  long  before  the 
meeting  of  Congress.  As  was  usual  with  Mr.  Monroe  upon  great  occa- 
sions, the  papers  were  sent  round  to  each  member  of  the  Cabinet,  so  that 
each  might  be  duly  apprised  of  all  the  circumstances  and  be  prepared 
to  give  his  opinion.  The  Cabinet  met.  It  deliberated.  There  was  long 
and  careful  consultation,  and  the  result  was  the  declaration  which  I 
liave  Just  announced.  All  this  has  passed  away.  That  very  movement 
on  the  part  of  England,  sustained  by  this  declaration,  gave  a  blow  to 
the  celebrated  alliance  from  which  it  never  recovered.  From  that  time 
it  gradually  decayed  till  it  utterly  perished.  The  late  revolutions  in 
Europe  have  put  an  end  to  all  its  work,  and  nothing  remains  of  all  that 
it  ever  did."  This  declaration,  Mr.  Calhoun  proceeded  to  state,  must  be 
limited  by  the  conditions  under  which  it  was  spoken,  as  otherwise  "it 
would  have  involved  the  absurdity  of  asserting  that  the  attempt  of  any 
Eur()})ean  state  to  extend  its  system  of  Government  to  this  continent, 
the  smallest  as  well  as  the  greatest,  would  endanger  the  peace  and 
safety  of  our  country."  "  The  next  declaration,"  Mr.  Calhoun  proceeded 
to  say,  "  was  that  we  would  regard  the  interposition  of  any  European 
I)Ower  to  oppress  the  Governments  of  this  continent,  which  we  had  re- 
cently recognized  as  independent,  or  to  control  their  destiny  in  any 
manner  whatever,  as  manifesting  an  unfriendly  disposition  toward  the 
United  States.  This  declaration,  also,  belongs  to  the  history  of  that 
day.  It  grew  out  of  the  same  state  of  circumstances,  and  may  be  con- 
sidered as  an  appendage  to  the  declaration  to  which  I  have  just  alluded. 
By  the  Governments  on  this  continent  which  we  had  recognized,  were 
meant  the  Republics  which  had  grown  up  after  having  thrown  off  the 
yoke  of  Spain.  They  had  just  emerged  from  their  protracted  revolu- 
tionary struggles.  They  had  hardly  yet  reached  a  point  of  solidity,  and 
in  that  tender  stage  the  administration  of  Mr.  Monroe  thought  it  proper 
not  only  to  make  that  general  declaration  in  reference  to  the  Holy 
Alliance,  but  to  make  a  more  specific  one  against  the  interference  of 
any  Eiin)|)ean  power,  in  order  to  countenance  and  encourage  these 
young  Rei)ul)lics  as  far  as  we  could  with  propriety."  Mr.  Calhoun 
Then  proceeded  to  say  that  the  third  proposition  of  Mr.  Monroe,  which 
had  been  referred  to,  was  "that  the  continents  of  America,  by  the  free 
and  in(le[)endent  condition  which  they  have  assumed  and  maintained, 
are  not  henceforth  to  be  considered  as  subjects  of  colonization  bv  anv  Eu- 
ropean power."  *  *  *  u  The  word  'colonization'  has  a  specific  mean- 
ing. It  means  the  establishment  of  a  settlement  by  emigrants  from  the 
parent  country  in  a  territory  either  uninhabited  or  from  which  the  iu- 

284  1 


CHAP.  III.]  MONROE    DOCTRINE.  {.§  ^^ • 

habitants  have  been  partially  or  wholly  expelled."  *  ♦  *  "It  may 
be  proper  to  go  into  a  history,  also,  of  this  declaration  of  Mr.  Monroe. 
It  grew  out  of  circnnistaiices  altogether  different  from  the  other  two. 
At  that  time  there  was  a  question  between  Great  Britain  and  the  United 
States  on  one  side  and  liussia  on  the  other.  All  three  clainied  settle- 
ments on  the  northwest  portion  of  this  continent.  Great  Britain  and 
ourselves  havingcommon  interest  in  keeping  Russia  as  far  north  as  possi- 
ble, the  former  i)ower  applie*  I  to  the  United  States  for  co-operation ;  and  it 
was  in  reference  to  that  matter  that  the  additional  declaration  was  made. 
(But  see  infra,  §  159.)  It  was  said  to  be  a  proper  opportunity  to  make  it. 
It  had  reference  specially  to  the  subject  of  the  northwest  settlement,  and 
the  other  portions  of  the  continent  were  drawn  in,  because  all  the  rest  of 
it,  with  the  exception  of  some  settlements  in  Surinam,  Maracaibo,  and 
thereabout,  had  passed  into  independent  hands."  Mr.  Calhoun  then  pro- 
ceeded to  reply  to  the  statement  made  in  the  Senate  in  debate,  that  all 
those  declarations  had  originated  with  Mr.  Adams,  and  were  unknown 
to  the  other  members  of  the  Cabinet  until  they  appeared  in  Mr.  Mon- 
roe's message.  "  I  recollect,"  said  Mr.  Calhoun,  "as  distinctly  as  I  do 
any  event  of  my  life,  that  all  the  papers  in  connection  with  this  subject 
were  submitted  to  the  members  before  the  Cabinet  met,  and  were  duly 
considered.  Mr.  Adams,  then,  in  speaking  of  the  whole  as  one,  must 
have  reference  to  the  declaration  relative  to  colonization.  As  respects 
this,  his  memory  does  not  differ  from  mine.  My  impression  is  that  it 
never  became  a  subject  of  deliberation  in  the  Cabinet.  I  so  stated  when 
the  Oregon  question  was  before  the  Senate.  I  stated  it  in  order  that  Mr. 
Adams  might- have  an  opportunity  of  denying  it,  or  asserting  the  real 
state  of  the  facts.  He  remained  silent,  and  I  presume  my  statement  is 
correct,  that  this  declaration  was  inserted  after  the  Cabinet  deliber- 
ated. It  originated  entirely  with  Mr.  Adams,  without  being  submitted 
to  the  Cabinet,  and  it  is,  in  my  opinion,  owing  to  this  fact  that  it  is  not 
made  with  the  precision  and  clearness  with  which  the  two  former  are. 
It  declares,  without  qualification,  that  these  continents  have  asserted 
and  maintained  their  freedom  and  independence,  and  are  no  longer  sub- 
ject to  colonization  by  any  European  power.  This  is  not  strictly  accu- 
rate. Taken  as  a  whole,  these  continents  had  not  asserted  and  main- 
tained their  freedom  and  independence.  At  that  period  Great  Britain 
had  a  larger  portion  of  the  continent  in  her  possession  than  the  United 
States.  Eussia  had  a  considerable  portion  of  it,  and  other  powers  pos- 
sessed some  j)ortious  on  the  southern  parts  of  this  continent.  The  dec- 
laration was  broader  than  the  fact,  and  exhibits  i^recipitaucy  and  want 
of  due  reflection.  Besides,  there  was  an  impropriety  in  it  when  viewed 
in  conjunction  with  the  foregoing  declarations.  I  speak  not  in  the  lan- 
guage of  censure.  We  were,  as  to  them,  acting  in  concert  with  Eng- 
land, on  a  proposition  coming  from  herself — a  proposition  of  the  utmost 
magnitude  and  which  we  felt  at  the  time  to  be  essentially  connected 
with  our  peace  and  safety  ;  and  of  course  it  was  due  to  i)ropriety  as 
well  as  policy  that  this  declaration  should  be  strictly  in  accordance  with 
British  feeling.  Our  power  then  was  not  what  it  is  now,  and  we  had 
to  relj^  upon  her  co-operation  to  sustain  the  ground  we  had  taken.  We 
had  then  only  aliout  six  or  seven  millions  of  people,  scattered,  and 
without  such  means  of  communication  as  we  now  possess  to  bring  us 
together  in  a  short  period  of  time.  The  declaration,  accordingly,  with 
respect  to  colonization,  striking  at  England  as  well  as  Eussia,  gave 
offense  to  her,  and  that  to  such  an  extent  that  she  refused  to  co-operate 
with  us  in  settling  the  Eussian  question.    Now,  I  will  venture  to  say 

285 


§  57.]  INTERVENTION.  [CHAP.  III. 

that  if  that  declaration  had  come  before  that  cautious  Cabinet,  for  Mr. 
INIonroe  was  among  the  wisest  and  most  cautious  men  I  have  ever  known, 
it  would  have  been  modified  and  expressed  with  a  far  greater  degree 
of  ])recision,  and  with  nuich  more  delicacy  in  reference  to  the  feelings 
of  the  British  Government. 

"  In  stating  the  precise  character  of  these  declarations,  and  the  man- 
ner in  which  they  originated,  I  have  discharged  a  doiible  duty,  a  duty 
to  my  country,  to  whom  it  is  important  that  these  declarations  should 
be  correctly  understood,  a  duty  to  the  Cabinet  of  which  1  was  a  member 
and  am  now  the  only  survivor.  I  remove  a  false  interpretation,  which 
makes  safe  and  proper  declarations  improper  and  dangerous. 

"But  it  is  not  only  in  these  respects  that  these  famous  declarations 
are  misunderstood  by  the  Chief  Magistrate  of  the  country  as  well  as  by 
others.  They  were  but  declarations — nothing  more;  declarations  an- 
nouncing in  a  friendly  manner  to  the  powers  of  the  world  that  we  should 
regard  certain  acts  of  interposition  of  the  allied  powers  as  dangerous  to 
our  peace  and  safety;  interposition  of  European  powers  to  oppress  the 
Eepublics  which  had  just  arisen  upon  this  continent,  as  manifesting  an 
unfriendly  disposition,  and  that  this  continent,  having  become  free  and 
independent,  was  no  longer  the  subject  of  colonization  by  European 
powers.  Kot  one  word  in  any  one  of  them  in  reference  to  resistance. 
There  is  nothing  said  of  it,  and  with  great  propriety  was  it  omitted. 
Kesistance  belonged  to  us — to  Congress.  It  is  for  us  to  say  whether  we 
shall  resist  or  not,  and  to  what  extent.     *     *     * 

"  Whether  you  will  resist  or  not,  and  the  measure  of  your  resistance — 
whether  it  shall  be  by  negotiation,  remonstrance,  or  some  intermediate 
measure,  or  by  a  resort  to  arms — all  this  must  be  determined  and  de- 
cided on  the  merits  of  the  question  itself.  This  is  the  only  wise  course. 
We  are  not  to  have  quoted  on  us,  on  every  occasion,  general  declara- 
tions to  which  any  and  every  meaning  may  be  attached.  There  are 
cases  of  interposition  where  I  would  re.sort  to  the  hazard  of  war  with 
all  its  calamities.  Am  I  asked  for  one  ?  I  will  answer.  I  designate 
the  case  of  Cuba.  So  long  as  Cuba  remains  in  the  hands  of  Spain, 
a  friendly  power,  a  power  of  which  we  have  no  dread,  it  should  con- 
tinue to-be,  as  it  has  been,  the  policy  of  all  administrations  ever  since  I 
have  been  connected  with  the  (Tovernment,  to  let  Cuba  remaiii  there; 
but  with  the  fixed  determination,  which  I  hope  never  will  be  relin- 
quished, that  if  Cuba  pass  from  her  it  shall  not  be  into  any  other  hands 
but  ours.  This,  not  from  a  feeling  of  ambition,  not  from  a  desire  for 
the  extension  of  dominion,  but  because  that  island  is  indispensable  to 
the  safety  of  the  United  States,  or  rather  because  it  is  indispensable  to 
the  safety  of  the  United  States  that  this  island  should  not  be  in  certain 
hands.  If  it  were,  our  coasting  trade  between  the  Gulf  and  the  Atlan- 
tif;  would,  in  case  of  war,  be  cut  in  twain,  to  be  followed  by  convulsive 
efiects.  In  the  same  category  I  will  refer  to  a  case  in  which  we  might 
most  rightfully  have  resisted,  Imd  ii  been  necessary,  a  foreign  pewer; 
and  that  is  the  case  of  Texas." 

4  Calkoun's  Wiarks,  i^ff. 

"  President  Polk  having,. in  1848,  based  on  what  was  supposed  to  be 
the  IMonroe  doctrine,  a  recommendation  to  take  possession  of  Yu(;atan, 
in  order  to  prevent  its  becoming  a  colony  of  any  European  power,  Mr. 
Calhoun,  who  was  a  member  of  the  Monroe  Cabinet,  explained  the  cir- 
cumstances connected  with  that  declaration.  It  was  made  in  concert 
with  Great  Britain,  in  order  to  prevent  the  intervention  of  the  '  Holy 
286 


CHAP.  III.]  MONROE    DOCTEINE.  [§  57. 

Alliauce/  in  aiding  Spain  to  regain  her  sovereignty  over  ber  revolted 
provinces.  Mr.  Canning  bad  informed  Mr.  Rush  (miniMter  of  the  United 
States  at  London)  of  the  project,  assuring  hira,  at  the  same  time,  that, 
if  sustained  by  the  United  States,  Great  Britain  would  resist.  (Speech 
iu  U.  S.  Senate,  May  15, 1848;  Calhoun's  Works,  vol.  iv,  p.  454.)  This 
is  in  accordance  with  the  statement  of  Sir  James  Mackintosh,  in  his 
speech  of  June,  1824.  (Works,  j),  555.)  The  message  itself  would  seem, 
however,  to  have  a  more  extended  a])plication.  It  was  with  reference 
to  the  discussions  then  pending  with  Kussia,  as  to  the  northwest  coast 
of  America,  that  it  is  said:  'The  occasion  has  been  judged  proi)er  for 
asserting,  as  a  principle  in  which  the  rights  and  interests  of  the  United 
States  are  involved,  that  the  American  continents,  by  the  free  and  in- 
dependent condition  which  they  have  assumed  and  maintain,  are  hence- 
forth not  to  be  considered  as  subjects  for  future  colonization  by  ajiy 
European  power.     (Annual  Register,  1823,  p.  185.)" 

Lawrence's  Wheaton,  ed.  1863,  p.  124. 

"  While  it  is  not  ray  purpose  to  recommend  the  adoption  of  any  meas- 
ure v/ith  a  view  to  the  acquisition  of  the  'dominion  and  sovereignty' 
over  Yucatan,  yet,  according  to  our  established  policy,  we  could  not 
consent  to  a  transfer  of  this  '  dominion  and  sovereignty  '  to  either  Spain, 
Great  Britain,  or  any  other  European  power.  In  the  language  of  Pres- 
ident Monroe,  iu  his  message  of  December,  1823,  '  we  should  consider 
any  attempt  on  their  part  to  extend  their  system  to  any  portion  of  this 
hemisphere  as  dangerous  to  our  peace  and  safety.'  In  my  annual  mes- 
sage of  December,  1845,  I  d(^clared  that  near  a  quarter  of  a  century 
ago  the  principle  was  distinctly  announced  to  the  world,  in  tha  annual 
message  of  one  of  my  predecessors,  that  the  American  continents,  by 
the  free  and  independent  condition  which  they  have  assumed  and  main- 
tain, are  henceforth  not  to  be  considered  as  subjects  for  future  coloniza- 
tion by  any  European  power.'  This  principle  will  apply  with  greatly 
increased  force,  should  any  Euro[)ean  power  attempt  to  esta"blish  any 
new  colony  in  North  America.  Jn  the  existing  circumstances  of  the 
world,  the  present  is  deemed  a  proper  occasion  to  reiterate  and  reaffirm 
the  principle  avowed  by  Mr.  Monroe,  and  to  state  my  cordial  concur- 
rence in  its  wisdom  and  sound  policy." 

President  Polk's  Special  Message,  April  29.  1848. 

"  The  independence  as  well  as  the  interests  of  the  nations  on  this 
continent  require  that  they  should  maintain  an  American  system  of 
policy  entirely  distinct  from  that  which  ijrevails  iu  Europe.  To  sutler 
any  interference  on  the  part  of  the  European  Governments  with  the 
domestic  eoncierns  of  the  American  Republics,  and  to  permit  th^em  to 
establish  new  colonies  upon  this  continent,  would  be  to  jeopard  their 
independence  and  ruin  their  interests.  These  truths  ought  everywhere 
throughout  this  continent  to  be  impressed  upon  the  public  mind ;  but 
what  can  the  United  States  do  to  resist  such  European  interference 
whilst  the  Spanish- American  Republics  continue  to  weaken  themselves 

287 


§  57.]  INTEEVENTION.  [CHAP.  III. 

by  (livisious  and  civil  war,  and  deprive  themselves  of  doing  anything 
for  their  own  protection  ?" 

Mr.  BiicbaiiaD,  Sec.  of  State,  to  Mr.  Hise,  June  3,  1848;  MSS.  Inst.  Am.  St.  ;  1 
Curtis'  Bucbauau,  G23. 

The  United  States  "  will  not  consent  to  the  subjugation  of  any  of  the 
independent  states  of  this  continent  to  European  powers,  nor  to  the 
exercise  of  a  protectorate  over  them,  nor  to  any  other  direct  political 
influences  to  control  their  policy  or  institutions." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Dodge,  Oct.  21,  1S58  ;  same  to  same,  Dec.  2, 1858; 
MSS.  lust.,  Spain. 

The  United  States  will  decline  to  enter  with  European  powers  into  a 
joint  mediation  between  contending  armed  parties  in  ^Mexico. 

Mr.  Trescot,  Acting  Sec.  of  State,  to  Mr.  Elgee,  Aug.  S,  1860  ;  MSS.  lust.,  Mex. 
Mr.  Cass,  Sec,  of  State,  to  Mr.  McLane,  Sept.  20,  1860 ;  infra,  f>  102. 

The  Claytou-Bulwer  treaty  is  the  only  exception  to  the  rule  that  the 
Government  of  the  United  States  will  decline  to  enter  into  any  com- 
binations or  alliances  with  European  powers  for  the  settlement  of 
questions  connected  with  the  United  States. 

Sujyra,  §  40;  infra,  ^  150,  287/. 

See  Tucker's  Monroe  Doctrine,  43. 

As  to  British  claim,  after  this  treaty,  to  Honduras,  .see  infra,  ^^  I.'jO,  287,  ff. 

The  Clareudou-Dallas  treaty  of  1856,  which  was  negotiated  with  the  view  of 
settling  the  difficulty,  was  amended  by -the  Senate  so  as  to  be  unsatisfactory 
to  the  British  Government,  and  consequently  was  dropped.  See  infra, 
9  1.50. 

The  Government  of  the  United  States  would  regard  with  grave  con- 
cern and  dissatisfaction  movements  in  Cuba  to  introduce  Spanish 
authority  within  the  territory  of  Dominica. 

Mr.. Seward,  Sec.  of  Stale,  to  Mr.  Tassara,  April  2, 1861 ;  MSS.  Notes,  Spain.     . 

''The  correspondence  which  took  i)lace  between  this  Government 
and  that  of  Her  Majesty  at  an  early  stage  of  the  insurrection  shows 
that  the  United  States  deemed  the  formation  of  a  mutual  engagement 
by  Great  Britain  and  France  that  those  two  powers  would  act  in  con- 
cert with  regard  to  the  said  insurrection  to  be  an  unfriendly  proceed- 
ing, and  that  the  United  States,  therefore,  declined  to  receive  from 
either  of  those  powers  any  communication  which  avowed  the  e.xisteuce 
of  .such  an  arrangement.  I  have,  therefore,  now  to  regret  that  Earl 
Kussell  has  thought  it  necessary  to  inform  this  Government  tbat  Her 
Majesty's  Government  have  found  it  expedient  to  consult  with  the  Gov- 
ern ntent  of  France  upon  the  question  whether  Her  Majesty's  Govern- 
m(Mit  will  now  recognize  the  restoration  of  peace  in  the  United  States. 

"It  is  further  a  source  of  regret  that  Her  Majesty's  Government  avow 

that  they  will  continue  still  to  re<iuire  tbat  any  United  States  cruisers 

which  shall  hereafter  belying  within  a  British  port  or  harbor  or  waters 

shall  be  detained  twenty  four  hours,  so  as  to  afford  an  opportunity  for 

288 


CHAP,  m.]  MONROE    DOCTKINK.  [§  57. 

any  iusurgeut  vessel  then  ivctually  being-  within  said  i)ort,  harbor,  or 
waters  to  gain  the  advantage  of  the  same  time  for  her  departure  from 
the  same  port,  harbor,  or  waters." 

Mr.  Seward,  Sec.  of  State,  to  ^Mr.  Bruce,  June  11),  1865;   MSS.  Notes,  Gr.  Brit. 

The  Government  of  the  United  States  will  "  maintain  and  insist  with 
all  the  decision  and  energy  which  are  compatible  with  our  existing  neu- 
trality that  the  rei>ublicau  system  which  is  accepted  by  any  one  of 
those  (South  American)  states  shall  not  be  wantonly  assailed,  ana  that 
it  shall  not  be  subverted  as  an  end  of  a  lawful  war  by  European  pow- 
ers ; "  but  beyond  this  position  the  United  States  Government  will  not 
go,  nor  will  it  consider  itself  hereby  bound  to  take  part  in  wars  in  which 
a  South  American  Republic  may  enter  with  a  European  sovereign  when 
the  object  of  the  latter  is  not  the  establishment  in  place  of  a  subverted 
Republic  of  a  Monarchy  under  a  European  prince. 

Mr.  Seward,  Sen.  of  State,  to  Mr.  Kilpatrick,  .Iiine  2,  1866;  MSS.  Inst.,Cbili. 

"  The  avoidance  of  entangling  alliances,  the  characteristic  feature  of 
the  foreign  policy  of  Washington,  sprang  from  this  condition  of  things. 
But  the  entangling  alliances  which  then  existed  were  engagements 
made  with  France  as  a  part  of  the  general  contract  under  which  aid  was 
furnished  to  us  for  the  achievement  of  our  independence.  France  was 
willing  to  waive  the  letter  of  the  obligation  as  to  her  West  India  pos- 
sessions, but  demanded,  in  its  stead,  privileges  in  our  ports  which  the 
Administration  was  unwilling  to  concede.  To  make  its  i-efusal  accepta- 
ble to  a  public  which  sympathized  with  France,  the  Cabinet  of  General 
Washington  exaggerated  the  principle  into  a  theory  tending  to  national 
isolation. 

"The  public  measures  designed  to  maintain  unimpaired  the  domestic 
sovereignty  and  the  international  neutrality  of  the  United  States  were 
iudependent  of  this  policy,  though  apparently  incidental  to  it.  The 
municipal  laws  enacted  by  Congress  then  and  since  have  been  but  dec- 
larations of  the  law  of  nations.  They  are  essential  to  the  preservation 
of  our  national  dignity  and  honor;  they  have  for  their  object  to  repress 
and  punish  all  enterprises  of  private  war,  one  of  the  last  relics  of  me- 
diaeval barbarism  ;  and  they  have  descended  to  us  from  the  fathers  of 
the  Rei)ublic,  supported  and  enforced  bj'  every  succeeding  President 
of  the  United  States. 

"  The  foreign  policy  of  these  early  days  was  not  a  narrow  one.  During 
this  period  we  secured  the  evacuation  by  Great  Britain  of  the  country 
wrongfully  occupied  by  her  On  the  lake;  we  acquired  Louisiana;  we 
measured  forces  on  the  sea  with  France,  and  on  the  laud  and  sea  with 
England  ;  we  set  the  example  of  resisting  and  chastising  the  piracies  of 
the  Barbary  States;  we  initiated  in  negotiations  with  Prussia  the  long 
line  of  treaties  for  the  liberalization  of  Avar  and  the  promotion  of  inter- 
national intercourse ;  and  we  steadily  demanded,  and  at  length  obtained, 

S.  Mis.  162— VOL.  I 19  289 


^^  57,]  INTERVENTION.  [CHAP.  HI. 

indeinnilicatioii  from  various  Governments  for  the  losses  we  had  suffered 
by  ibreifj;!!  spoliations  in  the  wars  of  Europe. 

"  To  this  point  in  our  foreign  policy  we  liad  arrived  when  the  revolu- 
tionary movements  in  Spanish  and  Portuguese  America  compelled  a 
modification  of  our  relations  with  Europe,  in 'consequence  of  the  rise 
of  new  and  independent  states  in  America. 

"  The  revolution,  which  commenced  in  1810  and  extended  through  all 
the  Spanish- American  continental  colonies,  after  vain  efforts  of  repres- 
sion on  the  part  of  Spain,  protracted  through  twenty  years,  terminated 
in  the  establishment  of  the  independent  states  of  Mexico,  Guatemala, 
San  Salvador,  Honduras,  Nicaragua,  Costa  Eica,  Venezuela,  Colombia, 
Ecuador,  Peru,  Chili,  Bolivia,  the  Argentine  Kepublic,  Uruguay,  and 
Paraguay,  to  which  the  Empire  of  Brazil  came  in  time  to  be  added. 
These  events  necessarily  enlarged  the  sphere  of  action  of  the  United 
States,  and  essentially  modified  our  relations  with  Europe  and  our  at- 
titude to  the  rest  of  this  continent. 

"  The  new  states  were,  like  ourselves,  revolted  colonies.  They  con- 
tinued the  precedent  we  had  set,  of  separating  from  Europe.  Their  as- 
sumjition  of  independence  was  stimulated  by  our  example.  They  pro- 
fessedly imitated  us,  and  copied  our  national  Constitution,  sometimes 
even  to  their  inconvenience. 

"The  Spanish-American  colonies  had  not  the  same  preparation  for 
independence  that  we  had.  Each  of  the  British  colonies  possessed  com- 
plete local  autonomy.  Its  formal  transition  from  dependence  to  inde- 
pendence consisted  chiefly  in  expelling  the  British  governor  of  the  col- 
ony and  electing  a  governor  of  the  State,  from  which  to  the  organized 
Union  was  but  a  step.  All  these  conditions  of  success  were  wanting  in 
Spanish  America,  and  hence  many  of  the  difficulties  in  their  career  as 
independent  states  ;  and  further,  while  the  revolution  in  British  Amer- 
ica was  the  exclusive  result  of  the  march  of  opinion  in  theBritish  colo- 
nies, the  simultaneous  action  of  the  separate  Spanish  colonies,  though 
showing  a  desire  for  independence,  was  principally  produced  by  the 
accident  of  the  invasion  of  Spain  by  France. 

"The  formation  of  these  new  sovereigntiesin  America  was  important 
to  us,  not  only  because  of  the  cessation  of  colonial  monopolies  to  that 
extent,  but  because  of  the  geograi)hical  relations  to  us  held  by  so  many 
new  nations,  all,  like  ourselves,  created  from  European  stock,  and  inter- 
ested in  excluding  Euroi)ean  politics,  dynastic  questions,  and  balances 
of  power  from  further  influence  in  the  New  World. 

"  Thus  the  United  States  were  forced  into  new  lines  of  action,  which 
though  ai)parently  in  some  respects  conflicting,  were  really  in  harmony 
with  the  line  marked  out  by  Washington.  The  avoidanceof  entangling 
political  alliances  and  the  maintenance  of  our  own  independent  neutral- 
ity became  doubly  important  from  the  fact  that  they  became  applicable 
to  the  new  Republics  as  well  as  to  the  mother  country.  The  duty  of  non- 
interference had  been  admitted  by  every  President.  The  question  came 
290 


CHAP.  III.]  MONROE    DOCTRINE.  [§  57. 

iij)  in  tbc  time  of  the  first  Adams,  on  the  occasion  of  the  enlistment 
l)iojects  of  Miranda.  It  api)eared  again  under  Jefferson  (anterior  to 
the  revolt  of  the  Spanish  colonies)  in  the  schemes  of  Aaron  Burr.  It 
was  an  ever-present  question  intlie  administrations  of  Madison,  Monroe, 
and  the  younger  Adams,  in  relerence  to  the  <iuestions  of  foreign  enlist- 
ment or  equipment  in  the  United  States,  and  when  these  new  Republics 
entered  the  family  of  nations,  many  of  them  very  feeble,  and  all  too 
much  subject  to  internal  revolution  and  civil  war,  a  strict  adherence  to 
our  previous  policy  and  a  strict  enforcement  of  our  laws  became  essen- 
tial to  the  preservation  of  friendly  relations  with  them  ;  for,  since  that 
time,  it  has  been  one  of  the  principal  cares  of  those  intrusted  with  the 
administration  of  the  Government  to  prevent  jiiratical  expeditions 
against  these  sister  Republics  from  leaving  our  ports.  And  thus  the 
changed  condition  of  the  New  World  made  no  change  in  the  traditional 
and  peaceful  policy  of  the  United  States  in  this  respect. 

"In  one  respect,  however,  the  advent  of  these  new  states  in  America 
did  compel  an  apparent  change  of  foreign  policy  on  our  i)art.  It  de- 
volved upon  us  the  determination  of  the  great  international  question,  at 
what  time  and  under  what  circumstances  to  recognize  a  new  power  as 
entitled  to  a  place  among  the  family  of  nations.  There  was  but  little 
of  precedent  to  guide  us,  excej^t  our  own  case.  Something,  indeed, 
could  be  inferred  from  the  historical  origin  of  the  Netherlands  and 
Switzerland,  but  our  own  case,  carefully  and  conscientiously  consid- 
ered, was  -sufficient  to  guide  us  to  right  conclusions.  We  maintained 
our  position  of  international  friendship  and  of  treaty  obligations  toward 
Spain,  but  we  did  not  consider  that  we  were  bound  to  wait  for  its  recog- 
nition of  the  new  Republics  before  admitting  them  into  treaty  relations 
with  us  as  sovereign  states.  We  held  that  it  was  for  us  to  judge 
whether  or  not  they  had  attained  to  the  condition  of  actual  independ- 
ence, and  the  consequent  right  of  recognition  by  us.  We  considered 
this  question  of  fact  deliberately  and  coolly.  We  sent  commissioners 
to  Spanish  America  to  ascertain  and  report  for  our  information  concern- 
ing their  actual  circumstances,  and  in  the  fullness  of  time  we  acknowl- 
edged their  independence.  We  exchanged  diplomatic  ministers,  and 
made  treaties  of  amity  with  them,  the  earliest  of  which,  negotiated  by 
Mr.  John  Quincy  Adams,  served  as  the  model  for  the  subsequent  treaties 
with  the  Spanish-American  Republics.  We  also,  simultaneously  there- 
with, exerted  our  good  offices  with  Spain  to  induce  her  to  submit  to 
the  inevitable  result,  and  herself  to  accept  and  acknowledge  the  inde- 
pendence of  her  late  colonies.  We  endeavored  to  induce  Russia  to  join 
us  in  these  representations.  In  all  this  our  action  was  positive  in  the 
direction  of  promoting  the  complete  political  separation  of  America 
from  Europe. 

"A  vast  field  was  thus  opened  to  the  statesmen  of  the  United  States 
for  the  peaceful  introduction,  the  spread,  and  the  permanent  establish- 
ment of  the  American  ideas  of  republican  government,  of  modification 

291 


§  57.]  INTERVENTION.  [CHAP.  III. 

of  the  laws  of  war,  of  liberalization  of  commerce,  of  religious  freedom 
and  toleration,  and  of  the  emancipation  of  the  New  World  from  the 
dynastic  and  balance-of-power  controversies  of  Europe. 

"Mr.  John  Quincy  Adams,  beyond  any  other  statesman  of  the  time 
in  this  country,  had  the  knowledge  and  experience,  both  European  and 
American,  the  comprehension  of  thought  and  purpose,  and  the  moral 
convictions  which  peculiarly  fitted  him  to  introduce  our  country  into 
this  new  field,  and  to  lay  the  foundation  of  an  American  policy'.  The 
declaration  known  as  the  Monroe  doctrine,  and  the  objects  and  pur- 
poses of  the  congress  of  Panama,  both  supposed  to  have  been  largely 
inspired  by  Mr.  Adams,  have  influenced  public  events  from  that  day  to 
this  as  a  principle  of  government  for  this  continent  and  its  adjacent 
islands. 

"It  was  at  the  period  of  the  congress  of  Aix-la-Chapelle  and  of  Lay- 
bach,  when  the  'Holy  Alliance'  was  combined  to  arrest  all  political 
changes  in  Europe  in  the  sense  of  liberty,  when  they  were  intervening 
in  Southern  Europe  for  the  re  establishment  of  absolutism,  and  when 
they  were  meditating  interference  to  check  the  progress  of  free  govern- 
ment in  America,  that  Mr.  Monroe,  in  his  annual  message  of  December 
1823,  declared  that  the  United  States  would  consider  any  attempt  to 
extend  the  European  system  to  any  portion  of  this  hemisphere  as  dan- 
gerous to  our  peace  and  safety.  '  With  the  existing  colonies  or  depend- 
encies of  any  European  power,'  he  said,  '  we  have  not  interfered  and 
shall  not  interfere.  But  with  the  Governments  who  have  declared  their 
independence  and  maintained  it,  and  whose  independence  we  have  on 
great  consideration  and  on  just  principles  acknowledged,  we  could  not 
view  any  interposition  for  the  pi*pose  of  oppressing  them,  or  control- 
ling, in  any  other  manner,  their  destiny,  by  any  European  power,  in  any 
other  light  than  as  the  manifestation  of  an  unfriendly  feeling  towards 
the  United  States.' 

"This  declaration  resolved  the  solution  of  the  immediate  question  of 
the  independence  of  the  Spanish-American  colonies,  and  is  supposed  to 
have  exercised  some  influence  upon  the  course  of  the  British  cabinet  in 
regard  to  the  absolutist  schemes  in  Europe  as  well  as  in  America. 

"  It  has  also  exercised  a  permanent  influence  on  this  continent.  It 
was  at  once  invoked  in  consequence  of  the  supposed  peril  of  Cuba  on 
the  side  of  Europe ;  it  was  applied  to  a  similar  danger  threatening  Yu- 
catan ;  it  was  embodied  in  the  treaty  of  the  United  States  and  Great 
Britain  as  to  Central  Anierica;  it  produced  the  successful  opposition 
of  the  United  States  to  the  attempt  of  Great  Britain  to  exercise  domin- 
ion in  Nicaragua  under  the  cover  of  the  Mosquito  Indians ;  and  it 
operated  in  like  manner  to  prevent  the  establishment  of  a  European 
dynasty  in  Mexico. 

"The  United  States  stand  solemnly  committed  by  repeated  declara- 
tions and  repeated  acts  to  this  doctrine,  and  its  application  to  the  affairs 
of  this  continent.  In  his  message  to  the  two  houses  of  Congress  at  the 
292 


CHAP.  III.]  MONROE    DOCTRINE.  [§  57. 

commencement  of  the  present  session,  the  President,  following  the 
teachings  of  all  our  history,  said  that  the  existing  'dependencies  are 
no  longer  regarded  as  subject  to  transfer  from  one  European  power  to 
another.  When  the  present  relation  of  colonies  ceases,  they  are  to  be- 
come independent  powers,  exercising  the  right  of  choice  and  of  self- 
control  in  the  determination  of  their  future  condition  and  relations  with 
other  powers.' 

"This  policy  is  not  a  policy  of  aggression;  but  it  opposes  the  crea- 
tion of  European  dominion  on  American  soil,  or  its  transfer  to  other 
European  powers,  and  it  looks  hopefully  to  the  time,  when,  by  the  vol- 
untary departure  of  European  Governments  from  this  continent  and 
the  adjacent  islands,  America  shall  be  wholly  American. 

"  It- does  not  contemplate  forcible  intervention  in  any  legitimate  con- 
test ',  but  it  protests  against  permitting  such  a  contest  to  result  in  the 
increase  of  European  power  or  influence;  and  it  ever  impels  this  Gov- 
ernment, as  in  the  late  contest  between  the  South  American  Republics 
and  Spain,  to  interpose  its  good  offices  to  secure  an  honorable  peace. 

"The  congress  of  Panama  was  planned  by  Bolivar  to  secure  the  union 
of  Spanish  America  against  Spain.  It  had  originally  military  as  well 
as  political  purposes.  In  the  military  objects  the  United  States  could 
take  no  part ;  and  indeed  the  necessity  for  such  objects  ceased  when 
the  full  effects  of  Mr.  Monroe's  declarations  were  felt.  But  the  pacific 
objects  of  the  congress,  the  establishment  of  close  and  cordialrelations 
of  amity,  the  creation  of  commercial  intercourse,  of  interchange  of  po- 
litical thought,  and  of  habits  of  good  understanding,  between  the  new 
Eepublics  and  the  United  States  and  their  respective  citizens,  might 
perhaps  have  been  attained  had  the  administration  of  that  day  re- 
ceived the  united  support  of  the  country.  Unhappily  they  were  lost ; 
the  new  states  were  removed  from  the  sympathetic  and  protecting  in- 
fluence of  our  example,  and  their  commerce,  which  we  might  then  have 
secured,  passed  into  other  hands,  unfriendly  to  the  United  States. 

"  In  looking  back  upon  the  Panama  congress  from  this  length  of  time, 
it  is  easy  to  understand  why  the  earnest  and  patriotic  men  who  endeav- 
ored to  crystallize  an  American  system  for  this  continent  failed. 

"  Mr.  Clay  and  Mr.  Adams  were  far-sighted  statesmen,  but  unfortu- 
nately they  struck  against  the  rock  of  African  slavery.  One  of  the 
questions  proposed  for  discussion  in  the  conference  was  '  the  considera- 
tion of  the  means  to  be  adopted  for  the  entire  abolition  of  the  African 
slave  trade,'  to  which  proposition  the  committee  of  the  United  States 
Senate  of  that  day  replied,  <  The  United  States  have  not  certainly  the 
right,  and  ought  never  to  feel  the  inclination,  to  dictate  to  others  who 
may  differ  with,  them  upon  this  subject,  nor  do  the  committee  see  the 
expediency  of  insulting  other  states,  with  whom  we  are  maintaining  re- 
lations of  perfect  amity,  by  ascending  the  moral  chair,  and  proclaiming 
from  thence  mere  abstract  principles,  of  the  rectitude  of  which  each 
nation  enjoys  the  perfect  right  of  deciding  for  itself.'    The  same  com- 

293 


§  57.]  INTERVENTION.  [CHAP.  III. 

mittee  also  alluded  to  the  possibility  tluit  the  condition  of  the  islands 
of  Cuba  and  Porto  Rico,  still  the  possessions  of  Spain,  and  still  slave- 
holding,  might  be  made  the  subject  of  discussion  and  of  contemi)lated 
action  by  the  Panama  congress.  '  If  ever  the  United  States  [they  said] 
permit  themselves  to  be  associated  with  these  nations  in  any  general 
congress  assembled  for  the  discussion  of  common  plans  in  any.  way  af- 
fecting European  interests,  they  will,  by  such  act,  not  only  deprive 
themselves  of  the  ability  they  now  possess  of  rendering  useful  assist- 
ance to  the  other  American  states,  but  also  produce  other  effects  preju- 
dicial to  their  own  interests. 

"  Thus  the  necessity  at  that  day  of  preserving  the  great  interests  of 
the  Southern  States  in  African  slavery,  and  of  preventing  a  change  in 
the  character  of  labor  in  the  islands  of  Cuba  and  Porto  Kico,  lost  to  the 
United  States  the  opportunity  of  giving  a  permanent  direction  to  the 
political  and  commercial  connections  of  the  newly  enfranchised  Spanish- 
American  states,  and  their  trade  passed  into  hands  unfriendly  to  the 
United  States,  and  has  remained  there  ever  since. 

"  Events,  subsequent  to  that  date,  have  tentled  to  place  us  in  a  posi- 
tion to  retrieve  our  mistakes ;  among  which  events  may  be  particularly 
named  the  suppression  of  the  rebellion,  the  manifestation  of  our  unde- 
veloped and  unexpected  military  power,  the  retirement  of  the  French 
from  Mexico,  and  the  abolition  of  slavery  in  the  United  States. 

"There  is  good  reason  to  believe  that  the  latter  fact  has  had  an  im- 
portant influence  in  our  favor  in  Spanish  America.  It  has  caused  us  to 
be  regarded  there  with  more  sympathetic  as  well  as  more  respectful 
consideration.  It  has  relieved  those  Republics  from  thefear  of'filibus- 
terism  which  had  been  formerly  incited  against  Central  America  and 
Mexico  in  the  interest  of  slave  extension ;  and  it  has  produced  an  im- 
pression of  the  stability  of  our  institutions  and  of  our  i)ublic  strength 
sufficient  to  dissipate  the  fears  of  our  friends  or  the  hopes  of  those  who 
wish  us  ill. 

"  Thus  there  exists  in  the  Spanish- American  Republics  confidence  to- 
ward the  United  States.  On  our  side  they  find  a  feeling  of  cordial  amity 
and  friendship,  and  a  desire  to  cultivate  and  develop  our  common  in- 
terests on  this  continent.  With  some  of  these  states  our  relations  are 
more  intimate  than  with  others,  either  by  reason  of  closer  similarity  of 
constitutional  forms,  of  greater  commercial  intercourse,  of  proximity  in 
fact,  or  of  the  construction  or  contemplated  construction  of  lines  of 
transit  for  our  trade  and  commerce  between  the  Atlantic  and  the  Pacific. 
With  several  of  them  we  have  peculiar  treaty  relations.  The  treaty  of 
184G  between  the  United  States  and  ^ew  Granada  contains  stij^ulations 
of  guarantee  for  the  iieutralitee  of  that  part  of  the  Isthmus  within  the 
present  territory  of  Colombia,  and  for  the  protection  of  the  rights  of 
sovereignty  and  property  therein  belonging  to  Colombia.  Similar  stip- 
ulations appear  in  the  treaty  of  1867  with  Kicaragua,  and  of  July,  1864, 
with  Honduras.  Those  treaties  (like  the  treaty  of  alliance  made  with 
294 


CHAP.  III.]  MONROE   DOCTRINE.  [§  5t. 

France  in  1778  by  Br.  Franklin,  Silas  Deane,  and  Arthur  Lee)  consti- 
tute jjro  tanto  a  true  protective  alliance  between  the  United  States  and 
each  of  those  Republics.  Provisions  of  like  effect  appear  in  the  treaty 
of  April  19,  1850,  between  Great  Britain  and  the  United  States." 

Report  of  Mr.  Fish,  Sec.  of  State,  to  the  President,  July  14,  1870,  accompanying 
President's  Message  of  same  date. 

"The  allied  and  other  republics  of  Spanish  origin,  on  this  continent, 
.may  see  in  this  fact  a  new  proof  of  our  sincere  interest  in  their  wel- 
fare; of  our  desire  to  see  them  blessed  wath  good  governments,  capable 
of  maintaining  order  and  of  preserving  their  respective  territorial  integ- 
rity, and  of  our  sincere  wish  to  extend  our  own  commercial  and  social 
relations  with  them.  The  time  is  not  probably  far  distant  when,  in  the 
natural  course  of  events,  the  European  political  connection  with  this 
continent  will  cease.  Our  policy  should  be  shaped,  in  view  of  this 
probability,  so  as  to  ally  the  commercial  interests  of  the  Spanish  Ameri- 
can States  more  closely  to  our  own,  and  thus  give  the  United  States  all 
the  preeminence  and  all  the  advantage  which  Mr.  Monroe,  Mr.  Adams, 
and  Mr.  Clay  contemplated  when  they  proposed  to  join  in  the  congress 
of  Panama." 

President  Grant's  Second  Annual  Message,  1870. 

On  the  ground  that  "  the  decision  of  American  questions  pertains  to 
America  itself,"  the  Department  of  State  will  not  sanction  an  arbitra- 
tion by  European  states  of  South  American  difficulties,  even  with  the 
consent  of  the  i^arties. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Reed,  Jan.  4,  1883 ;  MSS.  Inst.,  Spain. 

The  Government  of  the  United  States  would  regard  with  grave  anxiety 
an  attempt  on  the  part  of  France  to  force  by  hostile  pressure  the  pay- 
ment by  Venezuela  of  her  debt  to  French  citizens. 

Mr.  Blaine,  Sec.   of  State,  to  Mr.  Noyes,  July  23,  1881  ;  MSS.  Inst.,  France. 
See  Mr.  Blaine  to  Mr.  Morton,  Dec.  16,  1881. 

It  was  held  in  1881  inexpedient  for  the  United  States  to  unite  with 
France  and  Great  Britain  in  intervening  to  terminate  hostilities  between 
Chili  and  Peru. 

Mr.  Blaine,   Sec.  of  State,  to  Mr.  Morton,  Sept.  5,  1881  ;  MSS  Inst.,  France ; 
see  infra,  $  102. 

"  Mr.  Seward,  in  1868,  when  Secretary  of  State,  projected  a  treaty 
with  the  United  States  of  Colombia,  and  '  was  so  desirous  of  securing 
some  satisfactory  arrangement  with  that  Government,'  so  writes  Mr. 
Baker,  his  biographer  (Diplom.  Hist,  of  War,  p.  31),  'that  he  sent 
Mr.  Caleb  Gushing,  as  a  special  agent,  to  join  our  minister  at  Bogota 
in  the  negotiations.  A  treaty  embodying  the  Monroe  doctrine  was 
agreed  upon  and  signed  by  the  ministers.'  The  treaty  was  rejected 
by  the  Senate  of  Colombia,  and  '  for  unknown  reasons  failed  to  receive 
the  approval  of  the  Senate  of  the  United  States.'  (Appleton's  Cyclop. 
1809,  pp.  108,  701 ;  Secretary  Evarts's  report,  March  8,  1880 ;  Ex.  Doc. 

295 


§  57.]  INTERVENTION.  [ciIAP.  III. 

No.  112,  Senate,  46th  Conjj.,  2d  sess.)  Mr.  Seward's  protest  against 
French  interference,  in  1803,  in  Mexican  affairs,  though  sustained  in 
the  Bouse  of  liepresentatives,  was  passed  over,  no  doubt  with  the  assent 
of  the  Administration,  without  action  in  the  Senate.  And  Mr.  Seward, 
in  his  letter  to  Montholon,  of  December  6,  1865,  does  not  place  his  ob- 
jections to  French  interference  in  Mexico  on  the  ground  of  the  Monroe 
doctrine,  but  on  the  ground  that  'the  people  of  every  state  on  the 
American  continent  have  a  right  to  secure  for  themselves  a  republican 
government  if  they  choose,  and  that  interference  by  foreign  states  to 
prevent  the  enjoyment  of  such  institutions  deliberately  established  is 
wrongful,  and  in  its  effects  antagonistical  to  the  free  and  popular  form 
of  government  existing  in  the  United  States.'  (Diplom.  Hist,  of  the  War, 
427.)  A  striking  speech  on  this  topic  by  General  Dix  will  be  found  in  Dix's 
Life,  i,  217,  in  which  he  says  that  the  protests  of  Presidents  Monroe  and 
Polk  'are  sustained  by  an  undivided  public  opinioji,  even  though  they 
may  not  have  received  a  formal  response  from  Congress.'  This  is  true 
so  far  as  it  concerns  the  abitrary  interference  of  European  sovereigns 
in  American  affairs,  or  the  attempt  of  any  European  power  to  obtain 
the  control  of  the  Isthmus  of  Panama.  But  the  doctrine  should  not  be 
extended  so  as  to  preclude  a  European  i)ower  from  receiving  for  its  own 
purposes  (e.  g.,  for  coaling  steamers)  a  cession  of  territory  in  South 
America. 

"  For  an  article  on  the  Monroe  doctrine  in  relation  to  the  Isthmian 
Canal,  see  North  American  Review  for  June,  1880,  and  see  same  Review, 
December,  1881 ;  South.  Law  Rev.,  N.  S.,  vi,  729." 

Whart.  Coin.  Am.  Law,  §  175. 

President  Woolsey,  when  discussing  this  topic,  thus  speaks  (§  47) : 
"Was  it  intended  by  this  to  preclude  the  South  American  Republics, 
without  their  will,  from  receiving  such  (European)  colonies  within  their 
borders — of  surrendering  their  territory  for  that  purpose?  Such  a 
thing,  probably,  was  not  thought  of.  Mr.  Adams,  when  President,  in 
1825,  thus  refers  to  Mr.  Monroe's  principle,  while  speaking  in  a  special 
message  of  a  congress  at  Panama.  'An  agreement  between  all  the 
parties  represented  at  the  meeting,  that  each  will  guard  hy  its  oirn  means 
against  the  establishment  of  any  future  European  colony  within  its 
borders,  may  be  found  desirable.  This  was  more  than  two  years  since 
announced  by  my  predecessor  to  the  world,  as  a  principle  resulting 
from  the  emancipation  of  both  the  American  continents.'  Mr.  Adams, 
when  Se(;retary  of  State  under  Mr.  Monroe,  originated  the  'principle,' 
and  must  have  known  what  he  meant.  But  the  principle,  even  in  this 
time  form,  was  repudiated  by  the  Bouse  of  Representatives,  in  a  reso- 
lution declaring  that  the  United  States  'ought  not  to  become  parties' 
with  any  of  the  South  American  Republics  '  to  any  joint  declaration  for 
the  i)urpose  of  i)reventing  the  interlerence  of  any  of  the  Euroi)ean 
powers  with  their  independence  or  form  of  government ;  or  to  any  com- 
pact for  the  i)urpose  of  preventing  colonization  upon  the  continent  of 
America.' 

"On  the  whole,  then  (1),  tlie  doctrine  is  not  a  national  one.  The 
House  of  Rei)resentatives,  indeed,  had  no  right  to  settle  questions  of 
policy  or  of  international  law.  But  the  Cabinet  has  as  little.  The 
opinion  of  one  i)art  of  the  Government  neutralized  that  of  another. 
(2)  The  principle  tirst  mentioned  of  resisting  attempts  to  overthrow 
the  liberties  of  the  Spanish  Republics,  was  one  of  most  righteouvs 
self-defense,  and  of  vital  importance.  And  such  it  will  probably  al- 
296 


CHAP.  III.]  MONROE   DOCTRINE.  [§  S7. 

ways  be  regarded,  if  a  similar  juncture  should  arise.  But  the  other 
principlo  of  ])rohibitiuo  European  colonization  was  vague,  and  if  in- 
teudwl  to  ])revent  Kussia  from  titretchiug  her  borders  on  the  Pacific 
farther  to  the  soutli,  went  far  beyond  any  limit  of  interference  that  has 
hitherto  been  set  n\).  What  right  had  the  United  States  to  control 
liussia  in  gaining  territory  on  the  Pacific,  or  planting  colonies  there, 
when  she  had  neither  territory  nor  colony  to  be  endangered,  within 
thousands  of  miles  °? 

"TheMonroedoctrinecameup  again  in  another  shape  in  1848.  Presi- 
dent Polk  having  announced  that  the  Government  of  Yucatau  had 
offere<l  the  dominion  over  that  country  to  Great  Britain,  Spain,  and  the, 
United  States,  urges  on  Congress  such  measures  as  may  prevent  it 
from  becoming  a  colony  and  a  i)art  of  the  dominions  of  any  European 
power,  whicli  would  be,  he  says,  in  contravention  of  the  declaration  of 
Mr.  ]\Ionroe,  and  which  must  by  no  means  be  allowed.  Mr.  Calhoun, 
in  his  .s]>eecli  on  this  subject,  shows  that  the  case  is  very  different  from 
that  contemi)lated  by  i\lr.  Monroe,  that  the  declarations  of  the  latter 
could  not  be  regarded  as  expressing  the  settled  policy  of  this  country, 
and  that  they  were  mere  declarations  without  threat  of  resifstance. 
The  'colonization'  contemplated  by  the  Monroe  doctrine  could  not 
apply  to  Yucatan,  and  the  possibility  of  England  (which  was  especially 
intended)  acquiring  power  there  was  remote.  The  principle,  he  adds, 
'  which  lies  at  the  bottom  of  the  (President's)  recommendation  is,  that 
when  any  power  on  this  continent  becomes  involved  in  internal  war- 
fare, and  the  weaker  side  chooses  to  make  application  to  us  for  support, 
we  are  Ijound  to  give  them  support,  for  fear  the  offer  of  the  sovereignty 
of  the  country  may  be  made  to  some  other  power  and  accepted.  It  goes 
infinitely  and  dangerously  beyond  Mr.  Monroe's  declaration.  It  puts  it 
in  the  power  of  other  countries  on  this  continent  to  make  us  a  party  to 
all  their  wars.' 

"To  lay  down  the  principle  that  the  acquisition  of  territory  on  this 
continent,  by  any  European  power,  cannot  be  allowed  by  the  Unitted 
States,  would  go  far  beyond  any  measures  dictated  by  tlie  system  of 
the  balance  of  power,  for  the  rule  of  self-preservation  is  not  applicable 
in  our  case ;  we  fear  no  neighbors.  To  lay  down  the  principle  that  no 
political  systems  unlike  our  own,  no  change  from  republican  forms  to 
those  of  monarchy,  can  be  endured  in  the  Americas,  would  be  a  step  in 
advance  of  the  Congresses  at  Laybach  and  Verona,  for  they  apprehended 
destruction  to  their  political  fabrics,  and  we  do  not.  But  to  resist 
attempts  of  Pkiropean  powers  to  alter  the  constitutions  of  states  on 
this  side  of  the  water,  is  a  wise  and  just  opposition  to  interference. 
Anything  beyond  this  justifies  the  system  which  absolute  Governments 
have  initiated  for  the  suppression  of  revolutions  by  main  force." 

After  Mr.  Monroe's  declaration  in  his  message  above  referred  to,  the 
"proi)Osed  intervention  in  South  America  by  the  allied  sovereigns  hav- 
ing been  thus  opposed  by  the  United  States  as  well  as  by  Great  Britain, 
was  not  further  pressed ;  and,  under  such  circumstances,  a  resolution 
offered  in  the  House  of  Eepresentatives,  ])rotesting  against  such  inter- 
vention, was  withdrawn.  Mr.  Monroe,  in  his  message,  declared,  in  ad- 
dition, '  that  the  American  continents,  by  the  free  and  independent  con- 
ditions which  they  have  assumed  and  maintained,  are  henceforth  not  to 
be  considered  as  subjects  for  future  colonization  by  any  European  power.' 
Mr.  J.  Q.  Adams  was  then  Secretary  of  State,  and  was  responsible  for 
this  portion  of  the  message.  In  1825,  when  President,  he  addressed  a 
special  message  to  Congress  in  reference  to  the  Panama  congress,  in 

297 


^^57.]  INTER VENTIOK.  [cHAP.  III. 

which  he  states  that '  an  agreement  between  ail  the  parties  represented 
at  the  meeting,  that  each  will  guard  by  its  own  means  against  the  es- 
tablishment of  any  future  European  colony  within  its  borders,  may  be 
found  desirable.'  And  he  then  gave  the  following  significant  exposition 
of  Mr.  Monroe's  declaration:  'This  was  more  than  two  years  since  an- 
nounced by  my  predecessor  to  the  world  as  a  principle  resulting  from 
the  emancii)ation  of  both  the  American  continents.'  The  House  of 
Kepresentatives  was  at  the  time,  however,  in  strong  opposition  to  Mr. 
Adams's  administration,  and  was  peculiarly  indisposed  to  unite  in  ap- 
])r()ving  of  so  distinctively  administration  a  measure  as  the  congress  of 
Panama.  With  this  was  mingled  a  growing  distrust  in  the  permanency 
of  the  Governments  of  the  various  South  American  Eepublics  with  which 
it  was  proposed  to  combine.  But  whatever  may  have  been  the  motives, 
the  House  expressed  an  emphatic  disapproval  of  the  Administration 
project.  The  United  States,  so  it  was  resolved  by  a  party  majority, 
'ought  not  to  become  parties'  with  the  South  American  Governments 
'to  any  joint  declaration  for  the  purpose  of  preventing  the  interference 
of  any  of  the  European  powers  with  their  independence  or  form  of  gov- 
ernment; or  to  any  compact  for  the  purpose  of  preventing  colonization 
upon  the  continent  of  America.'  In  1848  the  question  was  again  brought 
up  by  Mr.  Polk,  then  President,  who  in  a  message  to  Congress  stated 
that  the  Government  of  Yucatan  had  offered  the  protectorship  of  that 
country  successively  to  Great  Britain,  the  United  States,  and  Spain, 
and  called  on  Congress  to  take  measures  to  prevent  any  part?  of  the 
American  continent  from  being  subjected  to  the  control  of  an^^  European 
power.  The  Yucatan  movement  towards  a  protectorship,  however,  was 
so  ephemeral  that  no  Congressional  action  towards  its  prevention  was 
necessary,  and  it  became  also  plain  that  Congress  as  a  body  was  not 
disposed  to  pass  any  measure  tending  to  aflfirm  the  position  taken  by 
Mr.  Polk." 

See  Wliart.  Com.  Am.  Law,  §  175.  The  Yucatan  question  has  been  already  dis- 
cussed in  this  section. 

President  Adams's  message,  of  1825,  with  regard  to  the  congress  at  Panama,  and 
the  papers  connected  therewith,  will  be  found  in  the  British  and  Foreign 
State  Papers  for  1825-'6,  vol.  13 ;  same  work,  vol.  15,  $  32. 

As  to  Ostend  Conference,  see  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Soul6,  Aug.  16, 
1854;  Nov.  13,  1854,  MSS.  Inst.,  Spain  ;  and  see  2  Curtis'  Buchanan,  136. 

As  to  Mr.  Polk's  reassertion  of  the  Monroe  doctrine,  with  special  reference  to 
North  America,  see  1  Curtis' Buchanan,  619  _^. 

For  a  discussion  of  the  Monroe  doctrine,  see  1  Phillimore  Int.  Law  (3  ed.),  590; 
and  also  review  hy  Mr.  Trescot,  9  South.  Quar.  Eev.,  N.  S.,  Ap.,  1854,  429. 
See  also  disquisition  l)y  Mr.  Urquhart,  13  Free  Press,  lib.  Dep.  of  State. 

Mr.  W.B.Lawrence,  in  his  Com.  sur  Droit  Int.  1,312,  argues  that  Mr.  Mon. 
roe's  doctrine  as  to  foreign  interposition  in  America  is  substantially  the  same 
as  that  advanced  by  the  French  Government  against  the  Prussian  movement 
in  1830  to  interfere  in  the  affairs  of  Belgium.  (See  same  volume,  301  ff.,  for 
full  discussion  of  Monroe  doctrine.) 

The  objections  to  joint  action  with  other  powers  as  to  affairs  on  this 
continent  are  stated  by  Mr.  Everett  in  notes  to  Count  de  Sartiges  and 
Lord  John  Russell,  given  infra,  §  72.  These  notes  are  to  be  particularly 
studied,  as  they  give  views  adopted  by  Mr.  Everett  after  consultation 
with  Mr.  Webster,  and  subsequently  accei>ted  by  Mr.  Marcy  and  Mr. 
(Jass,  succeeding  Secretaries  of  State,  as  well  as  by  Mr.  Calhoun  in  the 
Senate. 

298 


chap.  iii.]  mexico.  [§  58. 

iv.  special  application. 
(1)  Mexico. 

§58. 

The  message  of  President  Jacksou  on  Feb.  7,  1837,  on  Mexican  Relations,  and  the 
accompanying  papers,  will  be  found  in  Senate  Doc.  No.  160,  24th  Cong.,  2d 
sess.  Mr.  Buchanan's  report  of  Feb.  19, 1837,  on  the  same,  is  in  Senate  Doc. 
189,  same  sess.  (See  also  documents  connected  with  President  Jackson's  mes- 
sage of  Dec.  6,  1836,  House  Ex.  Doc.  No.  2 ;  24th  Cong.,  2d  sess.  ;  mess,  of 
Jan.  26,  1837,  House  Ex.  Doc.  No.  105,  same  sess. ;  message  of  I'eb.  8,  1837, 
House  Ex.  Doc.  No.  139,  same  sess.  ;  Mr.  Howard's  report  on  same,  Feb.  24, 
1837,  House  Rep.,  No.  281,  same  sess.;  report  of  Secretary  of  State,  Dec.  2, 
1837,  attached  to  Prest.  Van  Buren's  message  at  commencement  of  2r)th 
Cong.,  2d  sess.,  Dec.  5,  1837,  House  Ex.  Doc.  No.  3.) 

For  a  history  of  our  early  diplomatic  relations  with  Mexico,  see  Mr.  Van  Buren, 
Sec.  of  State,  to  Mr.  Butler,  Oct.  16,  1829  ;  MSS.  Inst.,  Am.  St. 

President  Van  Buren's  message  of  April  27, 1838,  giving  correspondence  between 
the  United  States  and  Mexico,  is  contained  in  House  Ex.  Doc.  No.  351, 
25th  Cong.,  2d  sess. 

Papers  connected  with  the  organization  of  Texas  will  be  found  in  the  British 
and  Foreign  State  Papers  for  1835-'6,  vol.  24,  1267,  and  in  same  work  for 
1842-'3,  vol.  31,801. 

The  correspondence  between  the  United  States  and  Mexico  respecting  Texas, 
will  be  found  in  the  British  and  Foreign  State  Papers,  1836-7,  vol.  25,  1075, 
1132.  In  the  same  volume,  1392,  will  be  found  correspondence  with  Texas 
as  to  annexation. 

The  correspondence,  \^  1824-1836,  relative  to  boundaries,  and  to  cession  of 
part  of  Texas,  will  be  found  in  British  and  Foreign  State  Papers  for 
1837-8,  vol.  26,  828,  1379.  Among  these  documents  are  instructions  by 
Mr.  Clay  (Sec.)  to  Mr.  Poinsett  (Mexico),  March  15,  1827,  ottering  to  pur- 
chase Texas;  Mr.  Van  Buren  (Sec.)  to  Mr.  Poinsett,  Aug.  25,  1829, to  the 
same  effect,  together  with  a  series  of  documents  respecting  the  settlement 
of  boundary  between  Mexico  and  the  United  States.  The  correspondence  in 
1836  between  the  United  States  and  Mexico  in  respect  to  claims  by  the 
former  on  the  latter  is  also  given  in  detail,  1379-1427. 

The  correspondence  in  1836  between  the  Department  of  State  and  the  Mexican 
mission  will  be  found  attached  to  the  President's  message  of  December  6, 
1836,  at  the  commencement  of  the  2d  session  24th  Congress. 

For  suggestions  to  Mexico  to  acquiesce  in  independence  of  Texas,  see  Mr.  Web- 
ster, Sec.  of  State,  to  Mr.  Thompson,  June  22,  1842;  MSS.  Inst.,  Mex. 
For  elaborate  vindication  of  United  States  neutrality  between  Texas  and 
Mexico,  see  same  to  same,  July  8,  1842,  July  13,  1842. 

As  to  history  and  policy  of  annexation  of  Texas,  see  hifra,  $  69,  70,72. 

No  matter  how  strongly  the  sympathies  of  the  United  States  may  be 
with  the  liberal  constitutional  party  in  Mexico,  "our  Government  cannot 
properly  intervene  in  its  behalf  without  violating  a  cardinal  feature  of 
our  foreign  policy." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  McLane,  March  7,  1-^59;  :\ISS.  Inst.,  Mex. 

"  While  we  do  not  deny  the  right  of  any  other  power  to  carry  on  hos- 
tile operations  against  Mexico,  for  the  redress  of  its  grievances,  we 

299 


§  58.]  INTERVENTION.  [cHAP.  III. 

firmly  object  to  its  holding  possession  of  any  part  of  that  country,  or 
endeavoring  by  force  to  control  its  political  destiny. 

"  This  opposition  to  foreign  interference  is  known  to  France,  Eng- 
land, and  Spain,  as  well  as  the  determination  of  the  United  States  to 
resist  any  such  attempt  by  all  the  means  in  their  power.  Any  design 
to  act  in  opposition  to  this  policy  has  been  heretofore  disavowed  by  each 
of  those  powers,  and  recently  by  the  minister  of  Spain,  in  the  name  of 
his  Government,  in  the  most  explicit  manner.    *    *     * 

"  I  have  already  referred  to  the  extent  of  the  principle  of  foreign  in- 
terference which  we  maintain  with  regard  to  Mexico.  It  is  proper  to 
add  that  while  that  principle  denies  the  right  of  any  power  to  hold  per- 
manent possession  of  any  part  of  that  countrj",  or  to  endeavor  by  force 
to  direct  or  control  its  political  destiny,  it  does  not  call  in  question  its 
right  to  carry  on  hostile  operations  against  that  Eepublic  for  the  redress 
of  any  real  grievances  it  may  have  suffered.  But  we  insist  that  such 
hostilities  be  fairly  prosecuted  for  that  purpose  and  be  not  converted 
into  the  means  of  acquisition  or  of  political  contract." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  McLane,  Sept.  20,  1860;  MSS.  Inst.,  Mex. 

"  Our  relations  with  Mexico  remain  in  a  most  unsatisfactory  condi- 
tion. In  my  last  two  annual  messages  I  discussed  extensively  the  sub- 
ject of  these  relations,  and  do  not  now  propose  to  repeat  at  length  the 
facts  and  arguments  then  presented.  They  proved  conclusively  that 
our  citizens  residing  in  Mexico,  and  our  merchants  trading  thereto,  had 
suffered  a  series  of  wrongs  and  outrages  such  as  we  have  never  pa- 
tiently borne  from  any  other  nation.  For  these  our  successive  minis- 
ters, invoking  the  faith  of  treaties,  had,  in  the  name  of  their  country, 
persistently  demanded  redress  and  indemnification,  but  without  the 
slightest  effect.  Indeed,  so  confident  had  the  Mexican  authorities  be- 
come of  our  patient  endurance,  that  they  universally  believed  they 
might  commit  these  outrages  upon  American  citizens  with  absolute 
impunity.  Thus  wrote  our  minister  in  1856,  and  expressed  the  opinion, 
that '  nothing  but  a  manifestation  of  the  power  of  the  Government  and 
of  its  purpose  to  punish  these  wrongs  will  avail." 

"  Afterwards,  in  1857,  came  the  adoption  of  a  new  constitution  for 
Mexico,  the  election  of  a  President  and  Congress  under  its  provisions, 
and  the  inauguration  of  the  President.  Within  one  short  month, 
however,  this  President  was  expelled  from  the  capital  by  a  rebellion 
in  the  army ;  and  the  supreme  power  of  the  Eepublic  was  assigned  to 
General  Zuloaga.  This  usurper  was,  in  his  turn,  soon  compelled  to  re- 
tire, and  give  place  to  General  Miramon. 

"  Under  the  constitution  which  had  thus  been  adopted,  Seiior  Juarez, 
as  chief  justice  of  the  supreme  court,  became  the  lawful  President  of 
the  Eepublic;  and  it  was  for  the  maintenance  of  the  constitution  and 
his  authority  derived  from  it,  that  the  civil  war  commenced,  and  still 
continues  to  be  prosecuted. 
300 


CHAP.  III.]  MEXICO.  [^  58. 

"  Throughout  the  year  1858,  the  constitutional  party  grew  strouger 
and  stronger.  In  the  previous  history  of  Mexico,  a  successful  military 
revolution  at  the  capital  had  almost  universally  been  the  signal  for 
submission  throughout  the  Republic.  Not  so  on  the  present  occasion. 
A  minority  of  the  citizens  persistently  sustained  the  constitutional 
Government.  When  this  was  recognized  in  April,  1859,  by  the  Gov- 
ernment of  the  United  States,  its  authority  extended  over  a  large 
majority  of  the  Mexican  States  and  people,  including  Vera  Cruz,  and 
all  the  other  important  seaports  of  the  Eepublic.  From  that  period 
our  commerce  with  Mexico  began  to  revive,  and  the  constitutional 
Government  has  aflbrded  it  all  the  protection  in  its  power. 

"  Meanwhile,  the  Government  of  Miramon  still  held  sway  at  the 
capital  and  over  the  surrounding  country,  and  continued  its  outrages 
against  the  few  American  citizens  who  still  had  the  courage  to  remain 
within  its  power.  To  cap  the  climax,  after  the  battle  of  Tacubaya,  in 
April,  1859,  General  Marquez  ordered  three  citizens  of  the  United 
States,  two  of  them  physicians,  to  be  seized  in  the  hospital  at  that- 
place,  taken  out  and  shot,  without  crime,  and  without  trial.  This  was 
done,  notwithstanding  our  unfortunate  countrymen  were  at  the  moment 
engaged  in  the  holy  cause  of  affording  relief  to  the  soldiers  of  both  par- 
ties who  had  been  wounded  in  the  battle,  without  making  any  distinc- 
tion between  them. 

"  The  time  had  arrived,  in  my  opinion,  when  this  Government  was 
bound  to  exert  its  power  to  avenge  and  redress  the  wrongs  of  our 
citizens,  and  to  afford  them  protection  in  Mexico.  The  interposing 
obstacle  was  that  the  portion  of  the  country  under  the  sway  of  Mira- 
mon could  not  be  reached  without  passing  over  territory'  under  the 
Jurisdiction  of  the  constitutional  Government.  Under  these  circum- 
stances, I  deemed  it  my  duty  to  recommend  to  Congress,  in  my  last 
annual  message,  the  employment  of  a  sufficient  military  force  to  pen- 
etrate into  the  interior,  where  the  Government  of  Miramon  was  to  be 
found,  with,  or,  if  need  be,  without  the  consent  of  the  Juarez  Govern- 
ment, though  it  was  not  doubted  that  this  consent  could  be  obtained. 
Never  have  I  had  a  clearer  conviction  on  any  subject  than  of  the  jus- 
tice, as  well  as  wisdom,  of  such  a  policy.  No  other  alternative  was 
left,  except  the  entire  abandonment  of  our  fellow-citizens  wlio  had  gone 
to  Mexico  under  the  faith  of  treaties  to  the  systematic  injustice,  cruelty, 
and  oppression  of  MiriYmon's  Government.  Besides,  it  is  almost  cer- 
tain that  the  simple  authority  to  emi)loy  this  force  would  of  itself  have 
accomplished  all  our  objects  without  striking  a  single  blow.  The  con- 
stitutional Government  would,  then,  ere  this  have  been  established  at 
the  city  of  Mexico,  and  would  have  been  ready  and  willing,  to  the  ex- 
tent of  its  ability,  to  do  us  justice. 

"  In  addition,  and  I  deem  this  a  most  important  consideration,  Euro- 
])ean  Governments  would  have  been  deprived  of  all  pretext  to  interfere 
in  the  territorial  and  domestic  concerns  of  Mexico.     We  should  thus 

301 


^  58.]  IN  CKl.'VKNTrON.  [CHAF.  III. 

have  boen  relieved  iVoiu  the  obligation  ul'  resisting,  even  by  iorre, 
shoiihl  this  bocoine  nocossaiw,  any  attempt  by  these  Governments  to 
«h'])rive  our  neighboring  b*e[iiibli(;  of  portions  of  her  territory,  a  (bity 
irom  wliicli  we  could  not  shrink  without  abandoning  the  traditional 
and  established  policy  of  the  American  people.  I  am  happy  to  observe 
that,  firmly  relying  upon  the  justice  and  good  faith  of  these  Govern- 
ments, there  is  no  present  danger  that  such  a  contingency  will  happen. 
''  Having  discovered  that  my  recommendations  would  not  be  sustained 
by  Congress,  the  next  alternative  was  to  accomplish,  in  some  degree, 
if  possible,  the  same  objects  by  treaty  stipulations  with  the  constitu- 
tional Government.  Such  treaties  were  accordingly  concluded  by  our 
late  able  and  excellent  minister  to  Mexico,  and  on  the  4th  of  Jaunary 
last  were  submitted  to  the  Senate  for  ratification.  As  these  have  not 
yet  received  the  final  action  of  that  body,  it  would  be  improjier  for  me 
to  present  a  detailed  statement  of  their  provisions.  Still,  I  may  be 
permitted  to  express  the  opinion  in  advance,  that  they  are  calculated 
to  promote  the  agricultural,  manufacturing,  and  commercial  interests 
of  the  country,  and  to  secure  our  just  influence  with  an  adjoining  Tle- 
jjublic  as  to  whose  fortunes  and  fate  we  can  never  feel  indifferent; 
whilst  at  the  same  time  they  provide  for  the  jiayment  of  a  considerable 
amount  towards  the  satisfaction  of  the  claims  of  our  injured  fellow-citi- 
zens." 

President  Buchanan's  Last  Annual  Message,  1860. 

"  That  Eei)ublic  (Mexico)  has  been  in  a  state  of  constant  revolution 
ever  since  it  achieved  its  independence  from  Spain.  The  various  con- 
stitutions adopted  from  time  to  time  had  been  set  at  naught  almost  as 
soon  as  proclaimed;  and  one  military  leader  after  another,  in  rapid 
succession,  had  usurped  the  Government.  This  fine  country,  blessed 
with  a  benign  climate,  a  fertile  soil,  and  vast  mineral  resources,  was  re- 
duced by  civil  war  and  brigandage  to  a  condition  of  almost  hopeless 
anarchy.  ^Meanwhile,  our  treaties  with  the  Eepublic  were  incessantly 
violated. 

'^Our  citizens  were  imi)risoned,  expelled  from  the  country,  and  in  some 
instances  nuirdered.  Then-  vessels,  merchandise,  and  other  property 
Avere  seized  and  confiscated.  While  the  central  Government  at  the 
capital  was  acting  in  this  manner,  such  was  the  general  lawlessness 
prevailing  that  difterent  i)arties  claiming  and  exercising  local  authority 
in  several  districts  were  committing  similar  outrages  on  our  citizens. 
Our  treaties  had  become  a  dead  letter,  and  our  commerce  with  the  Re- 
])ublic  was  almost  entirely  destroyed.  The  claims  of  American  citizens 
•filed  in  tlie  State  Department,  for  which  they  asked  the  interposition 
of  their  own  Government  with  that  of  Alexico  to  obtain  redress  and  in- 
demnity, exceeded  8l(>.<>()(),0()0.  Although  tliis  amount  may  have  been 
exaggerated  by  the  claimants,  still  their  actual  losses  must  have  been 
very  large. 

"In  all  these  cases,  as  they  occurred,  our  successive  ministers  de- 
manded redress,  but  their  demands  were  only  followed  by  new  injuries. 
Their  testimony  was  uniform  and  emphatic  in  reference  to  the  only 
remedy  which  in  their  judgment  would  prove  efi'ectual.  'Nothing  but 
a  manifestation  of  the  power  of  the  Government  of  the  United  States,' 
302 


CHi^.  III.]  MEXICO.  [§  58. 

wrote  Mr.  Jolin  Forsyth,  oiir  miui.ster  in  185G,  'and  of  its  purpose  to  ])un- 
isli  those  wrongs  will  avail.  I  assure  you  tliat  the  universal  belief  here 
is  that  there  is  nothinj^-  to  be  ai)prehended  from  the  Government  of  the 
United  States,  and  that  local  Mexican  officials  can  commit  these  out 
rages  ui)on  American  citizens  with  absolute  impunity.' 

"Ip  the  year  1857  a  favorable  change  occurred  in  the  affairs  of  the 
Republic,  inspiring  better  hopes  lor  the  future.  A  constituent  Con- 
gress, elected  by  the  i)eople  of  the  different  States  for  this  purjiose,  had 
framed  and  adopted  a  republican  constitution.  It  adjoui'ned  on  the 
17th  of  February,  1857,  having  i)rovided  for  a  popular  election  to  be  held 
in  July  for  a  President  and  members  of  Congress.  At  this  election 
General  Comonfort  was  chosen  President,  almost  without  opposition. 
His  term  of  office  was  to  commence  on  the  1st  of  December,  1857,  and  to 
continue  for  four  years.  In  case  his  office  should  become  vacant,  the 
constitution  had  provided  that  the  chief  justice  of  Mexico,  then  General 
Juarez,  should  become  President  until  the  end  of  the  term.  On  the  1st 
of  December,  1857,  General  Comonfort  appeared  before  the  Congress 
then  in  session,  took  the  oath  to  sujiport  the  constitution,  and  was  dul3' 
inaugurated. 

"  But  the  hopes  thus  inspired  for  the  establishment  of  a  regular  con- 
stitutional Government  soon  proved  delusive.  President  Comonfort, 
within  one  brief  month,  was  driven  from  the  capital  and  thellepublic 
by  a  military  rebellion  headed  by  General  Zuloaga:  and  General  Juarez 
consequently  became  the  constitutional  President  of  Mexico  until  the 
1st  day  of  December,  1861.  General  Zuloaga  instantly  assumed  the 
name  of  President,  with  indefinite  powers ;  and  the  entire  diplomatic 
corps,  including  the  minister  from  the  United  States,  made  haste  to 
recognize  the  authority  of  the  usurper  without  awaiting  instructions 
from  their  resi)ective  Governments.  But  Zuloaga  was  speedily  expelled 
from  i)ower.  Having  encountered  the  resistance  of  the  people  in  many 
parts  of  the  Republic,  and  a  large  portion  of  the  capital  having  '  pro- 
nounced' against  him,  he  was  in  turn  compelled  to  relinquish  the  Pres- 
idency. The  field  was  now  cleared  for  the  elevation  of  General  Mira- 
mon.  He  had  from  the  beginning  been  the  favorite  of  the  so-called 
'church  party,'  and  was  ready  to  become  their  willing  instrument  in 
maintaining  the  vast  estates  and  prerogatives  of  the  church,  and  in 
suppressing  the  liberal  constitution.  An  assembly  of  his  partisans, 
called  together  without  even  the  semblance  of  authority,  ele(;ted  him 
President,  but  he  warily  refused  to  accept  the  office  at  their  hands.  He 
then  resorted  to  another  but  scarcely  more  plausible  expedient  to  place 
himself  in  i)ower.  This  was  to  identify  himself  with  Geneial  Zuloaga, 
who  had  just  been  deposed,  and  to  bring  him  again  upon  tlie  stage  as 
President.  Zuloaga  accordmgly  reappeared  in  this  cliaracter,  but  his 
only  act  was  to  ai)point  JVIiramon  'President  substitute'  wlu-n  he  again 
retired.  It  is  under  this  title  that  Miramon  has  since  exercised  military 
authority  in  the  city  of  Mexico,  expecting  by  this  stratagem  to  aj)i)io- 
priate  to  himself  the  recognition  of  the  foreign  ministers  which  has 
been  granted  to  Zuloaga.  He  succeeded.  The  ministers  contimu'd 
their  relations  with  him  as  '  President  substitute '  in  the  same  manner 
as  if  Zuloaga  had  still  remained  in  ])ower.  It  was  by  this  farce,  for  it 
deserves  no  better  name,  that  INIiramon  succeeded  in  grasping  the  Pres- 
idency. The  idea  that  the  chief  of  a  nation  at  his  own  discretion  may 
transfer  to  whomsoever  he  please  the  trust  of  governing,  delegated  to 
him  for  the  l)eneHt  of  the  peoi)le,  is  too  absmd  to  receive  a  inomeut's 
countenance.     But  when  we  reflect  that  Zulojvga,  from  whom  Miramou 

303 


§  58.]  INTERVENTION.  [CHAP.  III. 

derived  bis  title,  was  himself  a  military  usurper,  having  expelled  the 
constitutional  President  (Conionfort)  from  office,  it  would  have  been  a 
lastinji'  disfrrace  to  the  Mexican  people  had  they  tamely  /submitted  to 
the  yoke.  To  such  an  imputation  a  large  majority  proved  themselves 
not  to  be  justly  exposed.  Although,  on  former  occasions  a  seizure  of 
the  capital  an<l  the  usurpation  of  power  by  a  military  chieftain  had 
been  generally  followed,  at  least  for  a  brief  season,  by  an  acquiescence 
of  the  Mexican  people,  yet  they  now  rose  boldly  and  independently  to 
defend  their  rights. 

"  President  Juarez,  after  having  been  driven  from  the  city  of  Mexico 
by  Zuloaga,  proceeded  to  form  a  constitutional  Government  at  Guana- 
juato. From  thence  he  proceeded  to  Vera  Cruz,  where  he  put  his  ad- 
ministration in  successful  operation.  The  people  in  many  portions  of 
the  Republic  rallied  to  his  support  and  flew  to  arms.  A  civil  war  thus 
began  between  the  friends  of  the  constitution  and  the  partisans  of  Mira- 
mon.  In  this  conflict  it  was  not  possible  for  the  American  people  to 
remain  indifferent  si)ectators.  They  naturally  favored  the  cause  of  Presi- 
dent Juarez,  and  expressed  ardent  wishes  for  his  success.  Meanwhile, 
JNIr.  Forsyth,  the  American  minister,  still  continued  at  the  city  of  Mex- 
i(-o  in  the  discharge  of  his  oflicial  duties  uutil  June,  1858,  when  he  sus- 
])euded  his  diplomatic  relations  with  the  Miramou  government,  until 
he  should  ascertain  the  decision  of  the  President.  Its  outrages  towards 
American  citizens  and  its  personal  indignities  towards  himself,  without 
hope  of  amendment  or  redress,  rendered  his  condition  no  longer  toler- 
able. Our  relations,  bad  as  they  had  been  under  former  Governments, 
had  now  become  still  worse  under  that  of  Miramou.  President  Bu- 
chanan ap{)roved  the  step  which  Mr.  Forsyth  had  taken.  He  was  conse- 
quently directed  to  demand  his  passports,  to  dei)osit  the  archives  of  the 
legation  with  Mr.  Black,  our  consul  at  the  city  of  Mexico,  and  to  pro- 
ceed to  Vera  Cruz,  where  an  armed  steamer  would  be  in  readiness  to 
convey  himself  and  family  to  the  Cnited  States. 

''  Thus  was  all  diplomatic  intercourse  finally  terminated  with  the  Gov- 
ernment of  Miramon,  whilst  none  had  been  organized  with  that  of 
Juarez.  The  President  entertained  some  hope  that  this  rupture  of  dip- 
lomatic relations  might  cause  Miramon  to  reflect  seriously  on  the  danger 
of  war  with  the  United  States,  and  might  at  least  arrest  further  out- 
rages on  our  citizens.  Instead  of  this,  however,  he  persisted  in  his 
course  of  violence  against  the  few  American  citizens  who  had  the  cour- 
age to  remain  under  his  power.  The  President,  in  his  message  of  De- 
cember, 1851),  informs  Congress  that  '  murders  of  a  still  more  atrocious 
character  have  been  committed  in  the  very  heart  of  Mexico,  under  the 
authority  of  .Aliramon's  government,  during  the  present  year.  Some  of 
these  were  worthy  oidy  of  a  barbarous  age,  and  if  they  had  not  been 
clearly  proven,  would  have  seemed  impossible  in  a  country  which  claims 
to  be  civilized.'  And  in  that  of  December,  18(50,  he  says  :  '  To  cap  the 
cliniax,  after  the  battle  of  Tacubaya,  in  April,  LS.jI),  General  Marquez 
ordered  three  citizens  of  the  United  States,  two  of  them  pliysicians,  to 
be  seized  in  the  hospital  at  that  place,  taken  out  and  shot,  without  crime 
and  without  trial.  This  was  done,  notwithstanding  our  unfortunate 
countrymen  were  at  the  moment  engaged  in  the  holy  cause  of  affording 
relief  to  the  soldiers  of  both  i)arties  who  had  been  wounded  in  the  bat- 
tle, without  making  any  distinction  between  them. 

'' '  Little  less  shocking  was  tlie  recent  fate  of  Ormond  Chase,  who  was 
shot  in  Tepic,  on  the  7th  of  August,  by  order  of  the  same  Mexican  gen- 
eral, not  only  without  ii  trial,  but  without  any  conjecture  by  his  friends 

304 


CHAP.  III.]  MEXICO.  [§  58. 

of  the  cause  of  his  arrest.'  He  was  represented  to  have  been  a  young 
man  of  good  character  and  intelligence,  who  had  made  numerous  fi  iends 
in  Tepic,  and  his  uncxi)ected  execution  shocked  the  wliole  couiujunity. 
'Other  outrages,'  the  President  states,  'might  be  ennmeiated,  but 
these  are  sufhcient  to  illustrate  the  wretched  state  of  the  country  and 
the  unjjrotected  condition  of  the^persons  and  property  of  our  citizens  iu 
Mexico.' 

"'The  wrongs  which  we  La\'e  suffered  from  Mexico  are  before  the 
world,  and  must  deeply  imi)ress  every  American  citizen.  A  Govern- 
ment which  is  either  unable  or  unwilling  to  redress  such  wrongs  is  de- 
relict to  its  highest  duties.'  Meanwhile  the  civil  war  between  the 
parties  was  conducted  with  various  success,  but  the  scnle  prei)onder- 
ated  in  favor  of  the  constitutional  cause.  Ere  long  the  Government  of 
Juarez  extended  its  authority,  and  was  acknowledged  in  all  the  im- 
portant i)orts  and  throughout  the  sea-coasts  and  external  territory  of 
the  Eepublic,  whilst  the  ])ower  of  Miranion  was  conlined  to  the  city  of 
Mexico  and  the  surrounding  IStates. 

"  The  final  triumph  of  Juarez  became  so  probable  that  President  Bu- 
cliauan  deemed  it  his  duty  to  inquire  and  ascertain  whether,  according 
to  our  constant  usage  in  such  cases,  he  might  not  recognize  the  consti- 
tutional (lovernment.  For  the  ])urpose  of  obtaining  reliable  informa- 
tion on  this  point,  he  sent  a  confidential  agent  to  Mexico  to  examine 
and  report  the  actual  condition  and  prospects  of  the  belligerents.  In 
consequence  of  his  report,  as  well  as  of  intelligence  from  other  sources,  he 
felt  justified  in  appointing  a  new  minister  to  the  Mexican  Republic. 
For  this  otfice  Mr.  liobert  M.  McLane,  a  distinguished  citizen  of  Maryland, 
was  selected.  He  proceeded  on  liis  mission  on  the  Sth  of  March,  1859, 
invested  '  with  discretionary  authority  to  recognize  the  Government  of 
President  Juarez,  if  on  his  arrival  in  Mexico  he  should  find  it  entitled  to 
such  recognition  according  to  the  established  ])ractice  of  the  United 
States.'  In  consequence,  on  the  7th  of  April,  .Air.  McLane  recognized 
the  constitutional  Government  by  presenting  his  credentials  to  Presi- 
dent Juarez,  having  no  hesitation,  as  he  said,  '  in  pronouncing  the 
Government  of  Juarez  to  be  the  only  existing  Government  of  the  Re- 
public' He  was  cordially  received  by  the  authorities  at  Vera  Cruz, 
who  have  ever  since  manifested  the  most  friendly  disposition  toward 
the  United  States. 

"  Unhai)pily,  however,  the  constitutional  government,  though  sup- 
ported by  a  large  majority,  both  of  the  jx^ople  and  of  the  several  Mexi- 
can states,  had  not  been  able  to  exi)el  Miramon  from  the  capital.  In 
the  opinion  of  the  President  it  had  now  become  the  imperative  duty  of 
Congiess  to  act  without  further  delay,  and  to  enforce  redress  from  the 
Government  of  Miramon  for  the  wrongs  it  had  committed,  in  violation 
of  the  faith  of  treaties,  against  citizens  of  the  United  States. 

''Toward  no  other  Government  would  we  have  manifested  so  long 
and  so  i)atient  a  forbearance.  This  arose  from  our  warm  sympathies 
foi-  a  neighboring  Republic.  The  territory  under  the  sway  of  Miramon 
around  the  caintal  was  not  accessible  to  our  iorces  without  passing 
through  the  states  under  the  jurisdiction  of  the  constitutional  govern- 
ment. But  this,  from  the  beginning,  had  always  manifested  the  warm- 
est desire  to  cultivate  the  most  friendly  relations  with  our  country. 
No  doubt  was  therefore  entertained  that  it  would  cheerfully  grant  us 
the  right  of  passage.  Moreover,  it  well  knew  that  the  expulsion  of 
Miramon  would  result  in  the  triumi)h  of  the  constitutional  government 
and  its  establishment  over  the  whole  territory  of  Mexico.    What  was, 

S.  Mis.  1G2— VOL.  I L>0  ^^^ 


5  58.]  INTERVENTION.  [CHAP.  III. 

also,  deemed  of  great  importance  by  the  President,  this  would  remove 
from  us  the  danger  of  a  foreign  war  in  support  of  the  Monroe  doctrine 
against  any  European  nation  which  might  be  tempted,  by  the  distracted 
condition  of  the  llepublic,  to  interfere  forcibly  in  its  internal  affairs 
under  the  pretext  of  restoring  peace  and  order." 

Mr.  Buchanan's  "Defense,"  quoted  2  Curtis'  Buch.,  215. 

:'^' The.  actual  condition  of  affairs  in  Mexico  is  so  imperfectly  under- 
stood here  that  the  President  finds  it  ver;y  difticult  to  give  you  particu- 
lar and  practical  directions  for  the  regulation  of  your  conduct  during 

your  mission.  ,.,,..  fc-vj-;?' 

"  Our  latest  information  was,  in  substance,  that  the  provisionalgov- 
ernment  of  President  Juarez,  so  long  confined  to  the  sea-coasts  of  the 
country,  had  finally  overthrown  its  adversaries  and  established  itself 
at  the  capital ;  that  the  opposing  armies  had  been  demoralized  and 
dispersed,  and  that  there  was  no  longer  any  armed  resistance  in  the 
states;  that  an  election  for  president  had  been  held,  in  conformity  with 
the  constitution  of  1857,  and  that  the  now  provisional  president  had 
probably  secured  a  majority  of  the  votes,  although  the  result  was  as  :\  et 
not  certainly  known.  The  pleasure  which  these  events  have  inspired 
is  unhappily  diminished  by  rumors  that  the  Government  is  without  suf- 
ficient authority  or  hold  on  the  public  confidence  to  maintain  order; 
that  robberies  are  of  frequent  occurrence  on  the  high  roads,  and  even 
that  a  member  of  our  late  legation  in  the  country  has  been  murdered 
on  his  way  from  the  City  of  Mexico  to  Vera  Cruz. 

"You  will  apply  yourself  at  once,  with  energy  and  diligence,  to  in- 
vestigate the  truth  of  this  last-mentioned  occurrence,  which,  if  found  to 
have  been  accurately  reported,  will  not  only  be  regarded  as  a  high 
offense  against  the  dignity  and  honor  of  the  United  States,  but  will 
prove  a  severe  shock  to  the  sensibilities  of  the  American  people. 

"The  President  is  unable  to  conceive  that  any  satisfactory  explana- 
tion of  a  transaction  so  injurious  to  the  character  of  Mexico  can  be 
made.  He  will,  however,  wait  for  your  report  concerning  it,  though 
with  the  deepest  anxiety,  before  taking  action  upon  the  subject. 

"  I  find  the  archives  here  full  of  complaints  against  the  Mexican  Gov- 
ernment for  violations  of  contracts  and  spoliations  and  cruelties  prac- 
ticed against  American  citizens.  These  complaints  have  been  lodged 
in  this  Department,  from  time  to  time,  during  the  long  reign  of  civil 
war  in  which  the  factions  of  Mexico  have  kept  that  country  involved, 
with  a  view  to  having  them  made  the  basis  of  demands  for  indemnity 
and  satisfaction  whenever  government  should  regain  in  that  country 
sufBcient  solidity  to  assume  a  character  for  responsibility.  It  is  not  the 
President's  intention  to  send  forward  such  claims  at  the  present  mo- 
ment. He  willingly  defers  the  performance  of  a  duty  which  at  any 
time  would  seem  ungracious,  until  the  incoming  administration  in 
Mexico  shall  have  had  time,  if  possible,  to  cement  its  authority  and  re- 
duce the  yet  disturbed  elements  of  society  to  order  and  harmony.  You 
30G 


CHAP.  III.]  MEXICO.  [§58. 

will,  however,  be  expected,  in  some  manner  which  will  be  marked  witb 
firmness  as  well  as  liberality,  to  keep  the  Government  there  in  mind 
that  snch  of  these  claims  as  shall  be  fonud  jnst  will,  in  due  time,  be 
presented  and  urged  upon  its  consideration. 

"  While  now,  as  heretofore,  it  is  a  duty  of  this  Government  to  reason 
with  that  of  Mexico,  and  dei)recate  a  continuance  of  the  chronic  reign 
of  disorder  there,  a  crisis  has  unhappily  arrived  in  which  the  perform- 
ance of  this  duty  is  embarrassed  by  the  occurrence  of  civil  commotions 
in  our  own  country,  by  which  Mexico,  in  consequence  of  her  proximity, 
is  not  unlikely  to  be  aifected.  The  spirit  of  discontent  seems,  at  lastj 
to  have  crossed  the  border,  and  to-be  engaged  in  an  attempt  to  over:^ 
throw  the  authority  of  this  Government  in  some  parts  of  the  country 
which  adjoin  the  Mexican  Republic.  It  is  much  to  be  feared  that  new 
embarrassments  of  the  relations  of  the  two  countries  will  happen  when 
authority  so  long  prostrated  on  the  Mexican  side  finds  the  power  of  the 
United  States  temporarily  suspended  on  this  side  of  the  frontier. 
Whatever  evils  shall  thus  occur,  it  is  much  to  be  feared,  will  be  aggra- 
vated by  the  intervention  of  the  Indians,  who  have  been  heretofore  \yith 
difficulty  restrained  from  violence,  even  while  the  Federal  authority 
has  been  adequately  maintained. 

"  Both  of  the  Governments  must  address  themselves  to  this  new  and 
annoying  condition  of  things,  with  common  dispositions  to  mitigate  its 
evils  and  abridge  its  duration  as  much  as  possible. 

"  The  President  does  not  expect  that  you  will  allude  to  the  origin  or 
causes  of  our  domestic  difficulties  in  your  intercourse  with  the  Govern- 
ment of  Mexico,  although  that  Government  will  rightfully  as  well  as 
reasonably  ask  what  are  his  expectations  of  their  course  and  their  end. 
On  the  contrary,  the  President  will  not  sutter  the  representatives  of  the 
United  States  to  engage  in  any  discussion  of  the  merits  of  those  diffi- 
culties in  the  presence  of  foreign  powers,  much  less  to  invoke  even  their 
censure  against  those  of  our  fellow-citizens  who  have  arrayed  themselves 
in  opposition  to  its  authority. 

"  But  you  are  instructed  to  assure  the  Government  of  Mexico  that 
these  difficulties,  having  arisen  out  of  no  deep  and  permanent  popular 
discontent,  either  in  regard  to  our  system  of  government  itself  or  to  the 
exercise  of  its  authority,  and  being  attended  by  social  evils  which  are 
as  ruinous  as  they  are  unnecessary,  while  no  organic  change  that  iscou- 
temi)lated  coftld  possibly  bring  to  any  portion  of  the  American  i)eople 
any  advantages  of  security,  peace,  prosperity,  or  ha])piness  equal  to 
those  which  the  Federal  Union  so  etiectually  guarantees,  the  President 
confidently  believes  and  expects  that  the  people  of  the  United  States, 
in  the  exercise  of  the  wisdom  that  hitherto  has  never  failed  them,  will 
speedily  and  in  a  constitutional  way  adopt  all  necessary  remedies  for 
the  restoration  of  the  public  peace  and  the  preservation  of  the  Federal 
Union, 

307 


§  58.]  INTERVENTION.  [CHAP.  III. 

"The  success  of  this  Government  in  conducting  affairs  to  that  consum- 
mation may  depend  to  some  small  degree  on  the  action  of  the  Govern- 
ment and  people  of  Mexico  in  this  new  emergency.  The  President 
could  not  fail  to  see  that  Mexico,  instead  of  being  benefited  by  the  pros- 
tration or  the  obstruction  of  federal  authority  in  this  country,  would  be 
exposed  by  it  to  new  and  fearful  dangers.  On  the  other  hand,  a  condi 
tiou  of  anarchy  in  Mexico  must  necessarily  operate  as  a  seduction  to 
those  who  are  conspiring  against  the  integrity  of  the  Union  to  seek 
strength  and  aggrandizement  for  themselves  by  conquests  in  JMexico 
and  other  parts  of  Spanish  America.  Thus,  even  the  dullest  observer 
is  at  last  able  to  see  what  was  long  ago  distinctly  seen  by  those  who  are 
endowed  with  any  considerable  i)erspicacity,  that  peace,  order,  and  con- 
stitutional authority  in  each  and  all  of  the  several  Eepublics  of  this 
continent  are  not  exclusively'  an  interest  of  any  one  or  more  of  them, 
but  a  common  and  indispensable  interest  of  them  all. 

"  This  sentiment  will  serve  as  a  key  to  open  to  you,  in  every  case,  the 
purposes,  wishes,  and  expectations  of  the  President  in  regard  to  your 
mission,  which,  I  hardly  need  to  say,  he  considers  at  this  juncture  per- 
hajjs  the  most  interesting  and  important  one  within  the  whole  circle  of 
our  international  relations. 

"  The  President  of  the  United  States  does  not  know,  and  he  will  not 
consent  1,0  know  with  prejudice  or  undue  favor  any  jwlitical  party,  relig- 
ious class,  or  sectional  interest  in  Mexico.  He  regrets  that  anything 
should  have  occurred  to  disturb  the  peaceful  and  friendly  relations  of 
Mexico  with  some  of  the  foreign  states  lately  represented  at  her  capital. 
He  hopes  most  sincerely  that  those  relations  may  be  everywhere  renewed 
and  reinvigorated,  and  that  the  independence  and  sovereignty  of  Mex- 
ico and  the  government  which  her  people  seem  at  last  to  have  accepted, 
after  so  many  conflicts,  may  be  now  universally  acknowledged  and  re- 
spected. 

"Taking  into  view  the  actual  condition  and  circumstances  of  Mexico 
as  well  as  those  of  the  United  States,  the  President  is  fully  satisfied 
that  the  safety,  welfare,  and  happiness  of  the  latter  would  be  more  ef- 
fectually promoted  if  the  former  should  retain  its  complete  integrity 
and  independence,  than  they  could  be  by  any  dismemberment  of  Mex- 
ico, with  a  transfer  or  diminution  of  its  sovereignty,  even  though 
thereby  a  portion  or  the  whole  of  the  country  or  its  sovereignty  should 
be  transferred  to  the  United  States  themselves.  The  President  is,  more- 
over, well  aware,  that  the  ability  of  the  Government  and  people  of  Mex- 
ico to  i>reserve  and  maintain  the  integrity  and  the  sovereignty  of  the 
Kepublic  might  be  very  much  impaired,  under  existing  circumstances, 
by  hostile  or  unfriendly  action  on  the  part  of  the  Government  or  of  the 
people  of  tlic  United  States.  If  he  needed  any  other  incentive  to  prac- 
tice justice  and  equality  to  Mexico,  it  would  be  found  in  the  reflection 
that  the  very  contention  and  strife  in  our  own  country  which  at  this 
n)oment  excite  so  much  domestic  disquietude  and  so  much  surprise 
308 


CHAP.  III.]  MEXICO.  [§  58. 

throughout  a  large  part  of  the  world,  could  probabl;y  never  have  hap- 
pened if  Mexico  had  always  been  able  to  maintain  with  firmness  real 
and  unquestioned  sovereignty  and  independence.  But  if  Mexico  has 
heretofore  been  more  unfortunate  in  these  respects  than  many  other 
modern  nations,  there  are  still  circumstances  in  her  case  which  justify 
a  hope  that  lier  sad  experience  may  be  now  coming  to  an  end.  Mexico 
really  has,  or  ought  to  have,  no  enemies.  The  world  is  deeply  inter- 
ested in  the  development  of  her  agricultural,  and  especially  her  mineral 
and  commercial  resources,  while  it  holds  in  high  respect  the  simple  virt- 
ues and  heroism  of  her  people,  and,  above  all,  their  inextinguishable 
love  of  civil  liberty, 

"  The  President,  therefore,  will  use  all  j^roper  influence  to  favor  the 
restoration  of  order  and  authority  in  Mexico,  and,  so  far  as  it  may  be  in 
his  power,  he  will  prevent  incursion  and  every  other  form  of  aggression 
by  citizens  of  the  United  States  agaiust  Mexico.  But  he  enjoins  you  to 
employ  your  best  efforts  in  convincing  the  Government  of  Mexico  and 
even  the  people,  if,  with  its  approval,  you  can  reach  them,  that  the  surest 
guarantee  of  their  safety  agaiust  such  aggressions  is  to  be  found  in  a  per- 
manent restoration  of  the  authority  of  that  Government.  If,  on  the  other 
hand,  it  shall  appear  in  the  sequel  that  the  Mexican  people  are  now  only 
resting  a  brief  season  to  recover  their  wasted  energies  sufficiently  to  lacer- 
ate themselves  with  new  domestic  conflicts,  then  it  is  to  be  feared  that 
not  only  the  Government  of  the  United  States  but  many  other  Govern- 
ments will  find  it  impossibl-e  to  prevent  a  resort  to  that  magnificent 
country  of  a  class  of  persons,  unhapi)ily  too  numerous  everywhere,  who 
are  accustomed  to  suppose  that  visionary  schemes  of  public  interest, 
aggrandizement,  or  reform  will  justify  even  lawless  invasion  and  ag- 
gression. 

"In  connection  with  this  point  it  is  proper  that  you  should  be  in- 
formed that  the  Mexican  Government  has,  through  its  representative 
here,  recently  complained  of  an  apprehended  attempt  at  invasion  of  the 
State  of  Sonora  by  citizens  of  California,  acting,  as  is  alleged,  with  the 
knowledge  and  consent  of  some  of  the  public  authorities  in  that  State. 
You  will  assure  the  Mexican  Government  that  due  care  being  first  taken 
to  verify  the  facts  thus  presented,  effective  means  shall  be  adopted  to 
put  our  neutrality  laws  into  activity. 

"  The  same  representative  has  also  expressed  to  the  President  an  ap- 
prehension that  the  removal  of  the  Federal  troops  from  the  Texan  bor- 
der may  be  followed  by  outbreaks  and  violence  there.  There  is,  perhaps, 
too  much  ground  for  this  apprehension.  Moreover,  it  is  impossible  to 
foresee  the  course  of  the  attempts  which  are  taking  place  in  that  region 
to  subvert  the  proper  authority  of  this  Government,  The  President, 
however,  meantime  directs  you  to  assure  the  Mexican  Government  that 
due  attention  shall  be  bestowed  on  the  condition  of  the  frontier,  with  a 
view  to  the  preservation  and  safety  of  the  peaceable  inhabitants  resid- 

309 


§  r)8.]  INTERVENTION.  [cHAP.  III. 

iiift-  there.  He  hopes  and  trusts  that  equal  attention  will  be  given  to 
this  important  subject  by  the  authorities  of  Mexico. 

"  These  matters,  grave  and  urgent  as  they  are,  must  not  altogether 
withdraw  our  attention  from  others  to  which  I  have  already  incident- 
ally alluded,  but  which  require  more  explicit  discussion. 

"For  a  few  years  past,  the  condition  of  Mexico  has  lieeu  so  unsettled 
as  to  raise  the  question  on  both  sides  of  the  Atlantic  whether  the  time 
has  not  come  when  some  foreign  power  ought,  in  the  general  interest 
of  society,  to  intervene  to  establish  a  protectorate  or  some  other  form 
of  Government  in  that  country  and  guarantee  its  continuance  there. 
Such  schemes  may  even  now  be  held  under  consideration  by  some  Eu- 
ropean nations,  and  there  is  also  some  reason  to  believe  that  designs 
have  been  conceived  in  some  parts  of  the  United  States  to  effect  either 
a  partial  dismemberment  or  a  complete  overthrow  of  the  Mexican  Gov- 
ernment, with  a  view  to  extend  over  it  the  authority  of  the  newly 
l)rojected  confederacy,  which  a  discontented  part  of  our  people  are  at- 
tempting to  establish  in  the  southern  part  of  our  own  country.  You 
may  possibly  meet  agents  of  this  projected  confederacy,  busy  in  pre- 
paring some  further  revolution  in  Mexico.  You  will  not  fail  to  assure 
the  Government  of  Mexico  that  the  President  neither  has,  nor  can  ever 
have,  any  sympathy  with  such  designs,  in  w  hatever  quarter  thej'  may 
arise,  or  whatever  character  they  may  take  on. 

"In  view  of  the  prevailing  temper  and  i^olitical  habits  and  opinions 
of  the  Mexican  people,  the  President  can  scarcely  believe  that  the  dis- 
affected citizens  of  our  own  country,  who  are  now  attempting  a  dismem- 
berment of  the  American  Union,  will  hope  to  induce  Mexico  to  aid  them 
by  recognizing  the  assumed  independence  which  they  have  proclaimed, 
because  it  seems  manifest  to  him  that  such  an  organization  of  a  distinct 
Government  over  that  part  of  the  present  Union  which  adjoins  Mexico 
would,  if  possible,  be  fraught  with  evils  to  that  country  more  intolera- 
ble than  any  which  the  success  of  those  desperate  measures  could  inflict 
even  upon  the  United  States.  At  the  same  time  it  is  manifest  that  the 
♦'xisting  political  organization  in  this  country  affords  the  surest  guar- 
anty Mexico  can  have  that  her  integrity,  union,  and  independence  will 
be  respected  by  the  whole  people  of  the  American  Union. 

"The  President,  however,  expects  that  you  will  be  w^atchful  of  such 
designs  as  I  have  thus  described,  however  improbable  they  may  seem, 
and  that  you  will  use  the  most  effective  measures  in  your  power  to 
counteract  any  recognition  of  the  projected  Confederate  States  by  the 
Mexican  Government,  if  it  shall  be  solicited. 

"Your  large  acquaintance  with  the  character  of  the  Mexican  people, 
their  interests,  and  their  policy  will  suggest  many  proper  arguments 
against  such  a  measure,  if  any  are  needful  beyond  the  intimations  I 
have  already  given. 

"In  conclusion,  the  President,  as  you  are  well  aware,  is  of  opinion 
that,  alienated  from  the  United  States  as  the  Spanish -American  Re- 
310 


CHAP.  III.]  MEXICO.  [§  58- 

publics  have  been  for  some  time  i)ast — largely,  perhaps,  by  reason  of 
errors  and  prejudices  i^eculiar  to  themselves,  and  yet  uot  altogether 
without  fault  on  our  own  part — that  those  states  and  the  United  States 
nevertheless,  in  some  respects,  hold  a  common  attitude  and  relation 
towards  all  other  nations ;  that  it  is  the  interest  of  them  all  to  be  friends 
as  they  are  neighbors,  and  to  mutually  maintain  and  support  each  other 
so  far  as  may  be  consistent  with  the  individual  sovereignty  which  each 
of  them  rightly  enjoys,  equally  against  all  disintegrating  agencies  within 
and  all  foreign  influences  or' power  without  their  borders. 

''The  President  never  for  a  moment  doubts  that  the  republican  sys- 
tem is  to  pass  safely  through  all  ordeals  and  prove  a  permanent  success 
in  our  own  country,  and  so  to  be  commended  to  adoption  by  all  other 
nations.  But  he  thinks  also  that  that  system  everywhere  has  to  make 
its  way  painfully  through  difliculties  and  embarrassments,  which  result 
from  the  action  of  antagonistical  elements  which  are  a  legacy  of  former 
times  and  very  difiFerent  institutions.  The  President  is  hopeful  of  the 
ultimate  triumph  of  this  system  over  all  obstacles,  as  well  in  regard  to 
Mexico  as  in  regard  to  every  other  American  state;  but  he  feels  that 
those  states  are  nevertheless  justly  entitled  to  a  greater  forbearance 
and  more  generous  sympathies  from  the  Government  and  people  of  the 
United  States  than  they  are  likely  to  receive  in  any  other  quarter. 

"The  President  trusts  that  your  mission,  manifesting  these  senti- 
ments, will  reassure  the  Government  of  Mexico  of  his  best  disposition 
to  favor  their  commerce  and  their  internal  improvements.  He  hopes, 
indeed,  that  your  mission,  assuming  a  spirit  more  elevated  than  one  of 
merely  commerce  and  conventional  amity,  a  spirit  disinterested  and 
unambitious,  earnestly  American  in  the  continental  sense  of  the  word, 
and  fraternal  in  no  affected  or  mere  diplomatic  meaning  of  the  term, 
while  it  shall  secure  the  confidence  and  good  will  of  the  Government 
of  Mexico,  will  mark  the  inauguration  of  a  new  condition  of  things 
directly  conducive  to  the  ])rosperity  and  happiness  of  both  nations, 
and  ultimately  auspicious  to  all  other  republican  states  throughout  the 
world." 

Mr.  Seward,  Sec.  of  State,  to   Mr.  Corwin,  Ap.  6,  1861;    MSS.  Iqst.,  Mex.; 
Dip.  Corr.,  18(51.     As  to  neutrality  in  connectiou  with  Mexico;  see  §  402. 

The  refusal  of  the  United  States  to  take  part  in  the  movement  of 
France,  Spain,  and  Great  Britain  to  comj^el  Mexico  to  the  payment  of 
her  debts  to  these  nations  is  noticed  in  2  Lawreiice'sCom.  sur  droit  int., 
339,  340.     See  further,  5  Calhoun's  Works,  379. 

The  British  and  Foreign  State  Papers  for  18Gl-'2,  vol.  r>2,  give  the 
correspondence  between  Great  Britain,  France,  Spain,  and  the  United 
States  respecting  the  affairs  of  Mexico,  the  non-settlement  of  claims  of 
British  creditors  and  others,  the  murder  of  the  British  vice-consul  at 
Tasco,  the  Spanish  occupation  of  Vera  Cruz,  the  suspension  of  diplo- 
matic relations,  and  the  combined  operations  of  Great  Britain,  France, 
and  Sj)ain  against  Mexico. 

311 


§58.]  « INTERVENTIOX.  [CHAP.  III. 

The  claims  so  pressed  may  be  thus  classified : 

1.  British.  Uii  November  1<),  bSOO,  the  house  of  the  British  legation 
was  broken  into  and  £15-. 000  sferlinj;'  bonds,  belougiu.u'  to  British  sub- 
jects, were  carried  olf.  (See  Fraser's  Mag,  Dec,  1801,  where  it  is 
said  that  this  attack  was  a  sort  of  "reprisal"  for  the  action  of  British 
naval  officers,  who  had  evaded  the  Mexican  tariff  on  the  exportation  of 
silver  by  carrying-  off  silver  in  British  cruisers.)  Damages  were  also 
claimed  for  the  murder  of  a  British  subject  on  April  3,  1859.  There 
was  also  a  claim  for  bonded  debts  secured  by  a  prior  diplomatic  arrange- 
ment with  Mexico. 

2.  French.  During  Miramon's  revolutionary  administration  an  issue 
of  bonds  for  $15,000,000  was  made  through  the  agency  of  Jecker,  a  Swiss 
banker,  the  amount  to  be  raised  by  this  process  being  $750,000.  These 
bonds  fell  into  the  hands  of  Jecker's  French  creditors.  A  claim  was 
made  also  for  $12,000,000  for  torts  on  French  subjects. 

3.  Si>anish.  By  the  Miramon  revolutionary  government  certain  prior 
Spanish  claims  of  various  types  were  recognized.  These,  however,  were 
repudiated  b^'  the  Juarez  government.  Another  grievance  was  the 
abrupt  dismissal  of  the  Spanish  minister  by  the  latter  government. 
(See  Tucker's  Monroe  Doct.,  93.)  As  will  be  hereafter  seen,  Great 
Britain  and  Spain  withdrew  from  the  alliance  before  the  hostile  occupa- 
tion of  Mexican  soil  by  France.     Infra,  §  318. 

As  to  the  character  of  the  claims  in  these  cases,  see  infra,  §  232. 

Ah  to  forcible  redress,  infra,  §  318. 

As  to  negotiations  with  Spain  in  reference  to  the  alliance  with  France  and 
Great  Britain  in  1860,  to  compel  payment  of  claims  on  Mexico,  see  corre- 
spondence in  U.  S.  Dip.  Corr.  for  1862,  504  ff. 

"  The  undersigned,  Secretary  of  State  of  the  United  States,  has  the 
honor  to  acknowledge  the  receipt  of  a  note  which  was  addressed  to  him 
on  the  30th  day  of  November  last,  by  Mr.  Gabriel  G.  y  Tassara,  min- 
ister plenipotentiary  of  Her  Majesty  the  Queen  of  Si)ain ;  Mr.  Henri 
Mercier,  minister  plenipotentiary  of  His  Majesty  the  Emperor  of  the 
French ;  and  the  Lord  Lyons,  minister  plenipotentiary  of  Her  Majesty 
the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland. 

"  With  that  paper,  the  aforesaid  ministers  have  submitted  the  text 
of  a  convention  which  was  concluded  at  London  on  the  31st  of  October 
last,  between  the  sovereigns  before  named,  with  a  view  of  obtaining, 
through  a  common  action,  the  redress  of  their  grievances  against  the 
Eepublic  of  Mexico. 

"  In  the  preamble  the  high  contracting  parties  say  that  they  have 
been  placed  by  the  arbitrary  and  vexatious  conduct  of  the  authorities  of 
the  Kepublic  of  Mexico  under  a  necessity  for  exacting  from  those  author- 
ities a  more  eflective  protection  for  the  persons  and  properties  of  their 
subjects,  as  well  as  the  execution  of  obligations  contracted  with  them 
by  the  lieimblic  of  Mexico,  and  have  agreed  to  conclude  a  convention 
between  themselves  for  the  purpose  of  combining  their  common  action 
in  the  case. 

"In  the  first  article  the  high  contracting  parties  bind  themselves 
to  make,  immediately  after  the  signing  of  the  convention,  the  neces- 
sary arrangements  to  send  to  the  shores  of  Mexico  land  and  sea 
31:^ 


CHAP.  III.]  MEXICO.  [§  58. 

forces  combiued,  the  effective  number  of  which  shall  be  determined  in 
a  further  exchange  of  communications  between  their  Governments,  but 
the  total  of  which  must  be  suflicient  to  enable  them  to  seize  and  occupy 
the  various  fortresses  and  military  positions  of  the  Mexican  sea-coasts  ; 
also  that  the  commanders  of  the  allied  forces  shall  be  authorized  to  ac- 
complish such  other  operations  as  roay,  on  the  spot,  be  deemed  most 
suitable  for  realizing  the  end  specified  in  the  j^reamble,  and  especially 
for  insuring  the  safety  of  foreign  residents  ;  and  that  all  the  measures 
which  are  thus  to  be  carried  into  effect  shall  be  taken  in  the  name  and 
on  account  of  the  high  contracting  parties  without  distinction  of  the 
particular  nationality  of  the  forces  employed  in  executing  them. 

"  In  the  second  article  the  high  contracting  parties  bind  themselves 
not  to  seek  for  themselves,  in  the  employment  of  the  coercive  measures 
foreseen  by  the  present  convention,  any  acquisition  of  territory,  or  any 
peculiar  advantage,  and  not  to  exercise  in  the  subsequent  affairs  of 
Mexico  anj'  influence  of  a  character  to  impair  the  right  of  the  Mexican 
nation  to  choose  and  freeh^  to  constitute  the  form  of  its  own  govern- 
ment. 

"  In  the  third  article  the  high  contracting  parties  agree  that  a  com- 
mission composed  of  three  commissioners,  one  appointed  by  each  of  the 
contracting  powers,  should  be  established,  with  full  power  to  determine 
all  questions  which  may  arise  for  the  employment  and  distribution  of 
the  sums  of  money  which  shall  be  recovered  from  Mexico,  having  regard 
to  the  respective  rights  of  the  contracting  parties. 

"  In  the  fourth  article  the  high  contracting  i^arties,  expressing  their 
desire  that  the  measures  which  it  is  their  intention  to  adopt  may  not 
have  an  exclusive  character,  and  recognizing  the  fact  that  the  Gov- 
ernment of  the  United  States,  like  themselves,  has  claims  of  its  own  to 
enforce  against  the  Mexican  Kepublic,  agree  that,  immediat  .'\v  after 
the  signing  of  the  present  convention,  a  copy  of  it  shall  be  c^immuni- 
cated  to  the  Government  of  the  United  States,  and  that  this  Govern- 
ment shall  be  invited  to  accede  to  it,  and  that  in  anticipation  of  such 
accession,  their  respective  ministers  at  Washington  shall  be  furnished 
with  full  powers  to  conclude  and  sign,  collectively  or  severally,  with  a 
plenipotentiary  of  the  United  States,  to  be  designated  by  the  Presi- 
dent, such  an  instrument. 

•'  But  as  the  high  contracting  powers  would  expose  themselves,  in 
making  any  delay  in  carrying  into  effect  articles  one  and  two  of  the 
convention,  to  failure  in  the  end  which  they  wish  to  attain,  they  have 
agreed  not  to  defer,  with  a  view  to  obtaining  the  accession  of  the  United 
States,  the  commencement  of  the  stipulated  operations  beyond  the  pe- 
riod at  which  their  combined  forces  may  be  united  in  the  vicinity  of 
Vera  Cruz. 

"  The  plenipotentiaries,  in  their  note  to  the  undersigned,  invite  the 
United  States  to  accede  to  the  convention.    The  undersigned,  having 

313 


§  58.]  INTERVENTION.  [CHAI>,  lU. 

submitted  the  subject  to  the  President,  will  proceed  to  commuuicatehis 
views  thereon. 

"First.  As  the  undersij?ned  has  heretofore  had  the  honor  to  inform 
each  of  the  plenipotentiaries  now  addressed,  the  President  does  not  feel 
himself  at  liberty  to  question,  and  he  does  not  question,  that  the  sover- 
eigns represented  have  undoubted  right  to  decide  for  themselves  the 
fiict  whether  they  have  sustained  grievances,  and  to  resort  to  war  a  gainst 
Mexico  for  the  redress  thereof,  and  liave  a  right  also  to  levy  the  war  sev- 
erally or  jointly. 

"Secondly.  The  United  States  have  a  deep  interest,  which,  however, 
they  are  happy  to  believe  is  an  interest  held  by  them  in  common  with  the 
high  contracting  powers  and  with  all  other  civilized  states,  that  neither 
of  the  sovereigns  by  whom  the  convention  has  been  concluded  shall  seek 
or  obtain  any  acquisition  of  territory  or  any  advantage  peculiar  to  itself, 
and  not  equally  left  open  to  the  United  States  and  every  other  civilized 
state,  within  the  territories  of  Mexico,  and  especially  that  neither  one 
nor  all  of  the  contracting  parties  shall,  as  a  result  or  consequence  of  the 
hostilities  to  be  inaugurated  under  the  convention,  exercise  in  the  subse- 
quent affairs  of  Mexico  an 3'  inliuenceof  a  character  to  impair  the  right  of 
the  Mexican  people  to  choose  and  freely  to  constitute  the  form  of  its  own 
government. 

"  The  undersigned  -renews  on  this  occasion  the  acknowledgment  here- 
tofore given,  that  each  of  the  high  contracting  parties  had  informed  the 
United  States  substantially  that  they  recognized  this  interest,  and  he  is 
authorized  to  express  the  satisfaction  of  the  President  with  the  terms  in 
which  that  recognition  is  clearly  embodied  in  the  treaty  itself. 

"It  is  true,  as  the  high  contracting  i)arties  assume,  that  the  United 
States  have,  on  their  part,  claims  to  urge  against  Mexico.  Upon  due 
consideration,  however,  the  President  is  of  opinion  that  it  would  be  in- 
expedient to  seek  satisfaction  of  their  claims  at  this  time  through  an  act 
of  accession  to  the  convention.  Among  the  reasons  for  this  decision 
which  the  undersigned  is  authorized  to  assign,  are,  first,  that  the  United 
States,  so  far  as  it  is  practicable,  prefer  to  adhere  to  a  traditional  policy 
recommended  to  them  by  the  Father  of  their  Country  and  confirmed  by  a 
happy  experience,  which  forbids  them  from  making  alliances  with  for. 
eign  nations ;  second,  Mexico  being  a  neighbor  of  the  United  States  on 
this  continent,  and  possessing  a  system  of  government  similar  to  our  own 
in  many  of  it«  important  features,  the  United  States  habitually  cherish 
a  decided  good- will  toward  that  Pepublic,  and  a  lively  interest  in  its  se. 
curity,  prosperity,  and  welfare.  Animated  by  these  sentiments  the 
United  States  do  not  feel  inclined  to  resort  to  forcible  remedies  for  their 
claims  at  the  present  moment,  when  the  Government  of  Mexico  is  deeply 
disturbed  by  factions  within,  and  exposed  to  war  with  foreign  nations. 
And,  of  course,  the  same  sentiments  render  them  still  more  disin(;lined  to 
allied  war  against  Mexico  than  to  war  to  be  waged  against  her  by  them- 
selves alone. 

314 


CHAP.  III.]  MEXICO.  [§  58. 

"  The  undersigned  is  farther  authorized  to  state  to  the  plenipoten- 
tiaries, for  the  information  of  the  sovereigns  of  Spain,  France,  and  Great 
Britain,  that  the  United  States  are  so  earnestly  anxious  for  the  safety 
and  welfare  of  the  Republic  of  Mexico,  that  they  have  already  empowered 
their  minister  residing  there  to  enter  into  a  treaty  with  the  Mexican  Re- 
public, conceding  to  it  some  material  aid  and  advantages  which  it  is 
hoped  may  enable  that  Republic  to  satisfy  the  just  claims  and  demands 
of  the  said  sovereigns,  and  so  avert  the  war  which  these  sovereigns  have 
agreed  among  each  other  to  levy  against  Mexico.  The  sovereigns  need 
not  be  informed  that  this  proposal  to  Mexico  has  been  made,  not  in  hos- 
tility to  them,  but  with  a  knowledge  of  the  proceeding  formally  commu- 
nicated to  them,  and  with  the  hojie  that  they  might  find,  through  the  in- 
creased ability  of  Mexico  to  result  from  the  treaty,  and  her  willingness 
to  treat  with  them  upon  just  terms,  a  mode  of  averting  the  hostilities 
which  it  is  the  object  of  the  convention  now  under  consideration  to  inaug- 
urate. What  has  thus  far  been  done  by  the  American  minister  at  Mex- 
ico, under  those  instructions,  has  not  yet  become  known  to  this  Govern- 
ment, and  the  information  is  looked  for  with  deep  interest. 

"  Should  these  negotiations  ofter  any  sufiBcieut  grounds  on  which  to 
justify  a  proposition  to  the  high  contracting  parties  in  behalf  of  Mexico, 
the  undersigned  will  hasten  to  submit  such  a  proijositiou  to  those  pow- 
ers. But  it  is  to  be  understood,  first,  that  Mexico  shall  have  acceded  to 
such  a  treaty ;  and  secondly,  that  it  shall  be  acceptable  to  the  President 
and  Senate  of  the  United  States.  • 

"  In  the  mean  time  the  high  contracting  powers  are  informed  that  the 
President  deems  it  his  duty  that  a  naval  force  should  remain  in  the  Gulf 
of  Mexico,  sufficient  to  look  after  the  interests  of  American  citizens  in 
Mexico  during  the  conflict  which  may  arise  between  the  high  contract- 
ing parties  and  that  Republic ;  and  that  the  American  minister  residing 
in  Mexico  be  authorized  to  seek  such  conference  in  Mexico  with  the  be- 
ligerent  parties,  as  may  guard  each  of  them  against  inadvertent  injury 
to  the  just  rights  of  the  UnitedStates,  if  any  such  should  be  endangered. 

"  The  undersigned  having  thus  submitted  all  the  views  and  senti- 
ments of  this  Government  on  this  important  subject,  to  the  high  con- 
tracting parties,  in  a  spirit  of  peace  and  friendship,  not  only  towards 
Mexico  but  towards  the  high  contracting  parties  themselves,  feels  as- 
sured that  there  will  be  nothing  in  the  watchfulness  which  it  is  thus 
proposed  to  exercise,  that  can  afford  any  cause  for  anxiety  to  any  of  the 
parties  in  question." 

Mr.  Seward,  Sec.   of  State,  to  Messrs.  Tassara,  Mcrcier  and  Lord  Lyons,  Dec. 

4, 1861 ;  MSS.  Notes,  Spain  ;  52  British  and  Foreign  State  Papers,  394. 
As  to  procedure  of  British  and  French  Governments  to  enforce  these  claims,  see 

in/ra.,  ^iS  23-2.  318. 

"  The  President,  however,  deems,  it  his  duty  to  express  to  the  allies, 
in  all  candor  and  frankness,  the  opinion  that  no  monarchical  govern- 
ment which  could  be  founded  in  Mexico,  in  the  presence  of  foreign  navies 

315 


§  58.]  INTERVENTION.  [CHAP.  III. 

and  armies  iu  the  waters  and  uj)on  the  soil  of  Mexico,  would  have  any 
prospect  of  security  or  permanence." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  Mar.  3,  I8(i2  ;  MSS.   Inst.,  Gr.  Brit. 

Mr.  Seward's  report  of  April  14,  1862,  on  the  *•  present  condition  of  Mexico," 
with  the  accompanying^  correspondence,  will  l)c  found  in  lloiise  Ex.  Doc., 
No.  100,  37th  Cong.,  2d  sess.  His  report  on  the  same  subject,  of  Feb.  4, 1863 
is  in  House  Ex.  Doc.  No.  M,  37th  Cong.,  3d  sess  ;  same  subject,  report  of 
June  16,  1864,  Senate  Ex.  Doc.  No.  11,  38th  Cong.,  2d  sess.;  Sen.  Ex.  Doc. 
No.  33,  same  sess.     (See  §^  232,  318.) 

"  The  undersigned,  Secretary  of  State  of  the  United  States,  has  the 
honor  to  acknowledge  the  reception  of  the  note  of  his  excellency  Mr. 
Romero,  charg^  d'affaires  of  the  Republic  of  Mexico,  which  bears  the 
date  of  December  20,  and  relates  to  the  subject  of  the  clearances  of  cer- 
tain articles  of  merchandise  at  the  city  of  iS^ew  York,  alleged  by  Mr. 
Romero  to  have  been  made,  on  account  of  French  subjects,  for  the  use 
of  the  French  Government  in  its  war  with  Mexico. 

"  In  the  note  which  the  undersigned  addressed  to  Mr.  Romero  on  this 
subject,  on  the  loth  December  last,  and  also  in  an  exposition  of  the 
same  subject  which  was  made  by  the  Secretary  of  the  Treasury,  and 
which  was  submitted  to  Mr.  Romero,  it  was  explained  that  the  clear- 
ances of  which  he  complains  were  made  in  conformity  with  the  laws  of 
the  United  States,  and  with  the  practical  construction  of  these  laws 
which  has  prevailed  from  the  foundation  of  this  Government,  a  period 
which  includes  wars,  more  or  less  general,  throughout  the  world,  and 
involving  many  states  situated  on  the  American  and  E  uropean  conti- 
nents. 

"  The  undersigned,  after  the  most  careful  reading  of  Mr.  Romero's 
note,  is  unable  to  concede  that  the  Government  of  the  United  States 
has  obliged  itself  to  prohibit  the  exportation  of  mules  and  wagons,  for 
which  it  has  no  military  need,  from  its  ports  on  French  account  because, 
being  in  a  state  of  war  and  needing  for  the  use  of  the  Government  all 
the  fire-arms  made  and  found  in  the  country,  it  has  temporarily  for- 
bidden the  export  of  such  weapons  to  all  nations. 

"Xor  is  it  perceived  how  the  treaty  between  the  United  States  and 
Mexico,  to  which  Mr.  Romero  refers,  bears  upon  the  question,  since  the 
United  States  hav^e  not  set  up  or  thought  of  setting  up  any  claim  that 
IMexico  shall  be  required  to  admit  into  her  jiorts  any  articles  of  mer- 
chandise, contraband  of  war,  which  may  be  exported  from  the  United 
States  on  French  or  any  other  account. 

"The  undersigned  is  equally  unable  to  perceive  the  bearing  of  Mr. 
Romero's  allusions  to  the  correspondence  Avhich  has  occurred  between 
this  Government  and  that  of  Great  Britain,  in  which  complaints  have 
been  made  by  the  United  States  that  Great  Britain  wrongfully  and  iu- 
iuriously  recognized  as  a  public  belligerent  an  insurrectionary  faction 
which  has  arisen  in  this  country ;  has  proclaimed  neutrality  between 
that  faction  and  this  Government,  and  has  suffered  armed  naval  expe- 
316 


CHAP.  III.]  MEXICO.  [§  58. 

ditious  to  be  fitted  out  iu  British  ports  to  depredate  on  the  commerce 
of  the  United  States,  in  violation  of.  as  was  believed,  the  Queen's  proc- 
lamation, and  of  the  municipal  laws  of  the  United  Kingdom." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Kotuero,  Jan.  7,  IHG'A  ;  MSS.  Notes,  Mex. ;  Dip, 
Corr.,  1863. 

"Candor  obliges  me  to  commence  my  observations  upon  the  subject 
with  an  acknowledgment  of  the  very  generous  manner  in  which  Mr. 
Drouyn  de  I'Huys  has  opened  the  way  to  a  disjiassionate  and  friendly 
consideration  of  the  complaint  which  he  has  preferred.  He  has  not 
only  reassured  you  of  the  friendly  spirit  of  the  Emperor  towards  the 
United  States,  but  he  has  also,  with  marked  decision  and  energy,  reaf- 
firmed to  you  that  France  has  no  purpose  in  Mexico  beyond  asserting 
just  claims  against  her,  obtaining  payment  of  the  debt  due,  with  the 
expenses  of  the  invasion,  and  vindicating  by  victory  the  honor  of  the 
French  flag,  and  that  France  does  not  mean  to  colonize  in  Mexico,  or  to 
obtain  Sonora  or  any  other  section  permanently,  and  that  all  allegations 
propagated  through  the  newspapers  conflicting  with  these  assurances 
are  untrue. 

"  Your  reply  to  these  remarks  of  Mr.  Drouyn  de  I'Huys,  namely,  that 
in  all  my  correspondence  with  you,  whether  public  or  private,  I  have 
averred  that  this  Government  has  no  purpose  to  interfere  in  any  way 
with  the  war  between  France  and  Mexico,  was  as  truthful  as  it  was  con- 
siderate and  proper.  The  United  States  have  not  difsclaimed,  and  can 
never  under  existing  circumstances  disclaim,  the  interest *they. feel  in 
the  safety,  welfare,  and  prosperity  of  Mexico,  any  more  than  they  can 
relinquish  or  disown  their  sentiments  of  friendship  and  good- will  to- 
wards France,  which  began  with  their  national  existence,  and  have  been 
cherished  with  growing  earnestness  ever  since.  When  the  two  nations 
towards  which  they  are  thus  inclined  are  found  engaged  in  such  a  war 
as  Mr.  Drouyn  de  I'Huys  has  described,  the  United  States  can  only  de- 
plore the  painful  occurrence,  and  express  iu  every  way  and  everywhere 
their  anxious  desire  that  the  conflict  may  be  brought  to  a  speedy  close 
by  a  settlement. consistent  with  the  stability,  prosperity,  and  welfare  of 
the  parties  concerned.  The  United  States  have  always  acted  upon  the 
same  principle  of  forbearance  and  neutrality  in  regard  to  wars  between 
powers  with  which  our  own  country  lias  maintained  friendly  relations, 
and  they  believe  that  this  policy  could  not  in  this,  more  than  in  other 
cases,  be  departed  from  with  advantage  to  themselves  or  to  the  interests 
of  peace  throughout  the  world." 

ill-.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  May  8,  1863 ;  MSS.  Inst.,  France ; 
Dip.  Corr.,  1863. 

"  When  France  made  war  against  Mexico,  we  asked  of  France  explana- 
tions other  objects  and  purposes.  She  answered,  that  it  was  a  war  for 
the  redress  of  grievances;  that  she  did  not  intend  to  permanently  oc- 
cupy or  dominate  iu  Mexico,  and  that  she  should  leave  to  the  people  of 

317 


§  58.]  INTERVENTION.  [CHAP.  III. 

Mexico  a  free  choice  of  institutions  of  government.  Under  these  cir- 
cuinstances  the  United  States  adopted,  and  they  have  since  maintained, 
entire  neutrality  between  the  belligerents,  in  harmony  with  the  tradi- 
tional policy  in  regard  to  foreign  wars.  The  war  has  continued  longer 
than  was  anticipated.  At  different  stages  of  it  France  has,  in  her  in^ 
tercourse  with  us,  renewed  the  explanations  before  mentioned.  The 
jFrench  army  has  now  captured  Pueblo  and  the  capital,  while  the  Mexi- 
can Government,  with  its  principfil  forces,  is  understood  to  have  retired 
to  SaiuLuis  Potosi,  and.  a  provisional  Government  has  been  instituted 

^mid^r  Fyench  auspices  in  the  city  of  Mexico,  which,  being  supported 
.|)y;  arms,  divides  the  actual  dominion  of  the  country  wnth  the  Mexican 

.GrO-vernmeut,  also  maintained  by  armed  power.  That  provisional  Govern- 
ment has  neither  made  nor  sought  to  make  any  communication  to  the 
Government  of  the  United  States,  nor  has  it  been  in  any  way  recog- 
nized by  this  Government.  France  has  made  no  communication  to  the 
United  States  concerning  the  provisional  Government  which  has  been 
established  in  Mexico,  nor  has  she  announced  any  actual  or  intended 
departure  from  the  policy  in  r.egard  to  that  country  which  her  before- 
mentioned  explauatiofls  have  authorized  us  to  expect  her  to  pursue. 
The  United  States  have  received  no  communications  relating  to  the 
recent  military  events  in  Mexico  from  the  recognized  Government  of 
that  country. 

"  The  Imperial  Government  of  Austria  has  not  explained  to  the  United 

•States  thatiit  has  an  interest  in  the  subject,  or  expressed  any  desire  to 
know  itheir  views  upon  it.  The  United  States  have  heretofore,  on  proper 
occasions,  frankly  explained  to  every  party  having  an  interest  in  the 
question  the  general  views  and  sentiments  which  they  have  always  en- 
tertained, and  still  entertain,  in  regard  to  the  interests  of  society  and 
government  on  this  continent.  Under  these  circumstances  it  is  not 
deemed  necessary  for  the  representatives  of  the  United  States, in  foreign 
countries,  to  engage  in  the  political  debates  which  the  present  unsettled 
aspect  of  the  war  in  Mexico  has  elicited.  You  will  be  promptly  advised 
if  a  necessity  for  any  representations  to  the  Government  of  Austria 
shall  arise." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Motley,  Sept.  11,  1863;  MSS.  lust.,  Austria; 
Dip.  Corr.,  1863.  See  further  as  to  the  attitude  of  Great  Britain  and  the 
United  States  as  to  the  allied  attack  on  Mexico,  iitfra,  $§  232,  318. 

"  The  French  forces  are  understood  to  hold  in  subjection  to  the  new 
provisional  Government  establishedin  Mexico  three  of  the  States,  while 
all  the  other  constituent  members  of  the  Republic  of  Mexico  still  remain 
under  its  authority.  There  are  already  indications  of  designs  in  those 
States  to  seek  aid  in  the  United  States,  with  the  consent  of  this  Gov- 
ernment, if  attainable,  and  without  it  if  it  shall  be  refused,  and  for  this 
purpose  inducements  are  held  out  well  calculated  to  excite  sympathies 
in  a  border  population.  The  TTnited  States  (iovernment  has  hitheito 
practiced  strict  neutrality  between  the  French  r.Tid  Mexico,  and  all  the 
318 


CHAP.  III.]  '        MEXICO.  [§  58. 

more  cheerfully  because  it  has  relied  on  the  assurances  given  by  the 
French  Government  that  it  did  not  intend  permanent  occupation  of  that 
country  or  any  violence  to  the  sovereignty  of  its  people.  The  proceed- 
ings of  the  French  in  Mexico  are  regarded  by  many  in  that  country  and 
in  this  as  at  variance  with  those  assurances.  Owing  to  this  circum- 
stance, it  becomes  very  difficult  for  this  Government  to  enforce  a  rigid 
observance  of  its  neutrality  laws.  The  President  thinks  it  desirable 
that  you  should  seek  an  opportunity  to  mention  these  facts  to  Mr. 
Drouyn  de  I'Huys,  and  to  suggest  to  him  that  the  interests  of  the 
United  States,  and,  as  it  seems  to  us,  the  interests  of  France  herself, 
require  that  a  solution  of  the  present  complications  in  Mexico  be  made 
as  early  as  may  be  convenient  upon  the  basis  of  the  unity  and  inde- 
pendence of  Mexico.  I  cannot  be  misinterpreting  the  sentiments  of  the 
United  States  in  saying  that  they  do  not  desire  an  annexation  of 
Mexico  or  any  part  of  it,  uor  do  they  desire  any  sjiecial  interest,  con- 
trol, or  influence  there,  but  they  are  deeply  interested  in  the  re  estab- 
lishment of  unity,  peace,  and  order  in  the  neighboring  Eepublic,  and 
exceedingly  desirous  that  there  may  not  arise  out  of  the  war  in  Mexico 
any  cause  of  alienation  between  them  and  France.  Insomuch  as  these 
sentiments  are  by  no  means  ungenerous,  the  President  unhesitatingly 
believes  that  they  are  the  sentiments  of  the  Emperor  himself  in  regard 
to  Mexico." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  Sept.  21,  1863;  MSS.  Inst.,  France; 
Dip.  Corr.,  1863.  • 

^'  Your  interesting  dispatch  of  September  1  (No.  32)  has  been  re- 
ceived. The  United  States  are  not  indifl'erent  to  the  events  which  are 
occurring  in  Mexico.  They  are  regarded,  however,  as  incidents  of  the 
war  between  France  and  Mexico.  While  the  Governments  of  those 
two  countries  are  not  improperly  left  in  any  uncertainty  about  the  senti- 
ments of  the  United  States,  the  reported  relations  of  a  member  of  the 
imperial  fiimily  of  Austria  to  those  events  do  not  seem  sufficientto  justify 
this  Government  in  making  any  representations  on  that  subject  to  the 
Government  of  the  Emperor.  His  candor  and  fairness  towards  the 
United  States  warrant  the  President  in  believing,  as  he  firmly  does, 
that  His  Majesty  will  not  suffer  his  Government  to  be  engaged  in  any 
proceeding  hostile  or  injurious  to  the  United  States." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Motley,  Sept.  26, 1863;  MSS.  Just.,  Austria; 
Dip.  Corr.,  1863. 

"  It  is  well  understood  that  through  a  long  period,  closing  in  1860, 
the  manifest  strength  of  this  nation  was  a  sutlicient  protection,  for  itself 
and  for  Mexico,  against  all  foreign  states.  That  power  was  broken  down 
and  shattered  in  18G1  by  faction.  The  first  fruit  of  our  civil  war  was 
a  new,  and  in  effect,  though  not  intentionally  so,  an  unfriendly  attitude 
assumed  by  Great  Britain,  France,  and  Spain,  all  virtually,  and  the  two 
first-named  powei's  avowedly,  moving  in  concert.     While  I  cannot  cou- 

319 


§  58.]  INTERVENTION.  [cHAP.  III. 

fess  a  fear  on  the  part  of  this  Government  that  any  one  or  all  of  the  mari- 
time powers  combining  with  the  insurgents  could  overthrow  it,  yet  it 
would  have  been  manifestly  presumptuous,  at  any  time  since  this  dis- 
traction seized  the  American  people,  to  have  provoked  such  an  inter- 
vention, or  to  have  spared  any  allowable  means  of  preventing  it.  The 
unceasing  eflForts  of  this  Department  in  that  direction  have  resulted 
from  this  ever-present  consideration.  If  in  its  communications  the 
mujestic  efforts  of  the  Governineut  to  subdue  the  insurrection,  and  to 
remove  the  temptation  which  it  offered  to  foreign  powers,  have  not  fig- 
ured so  largely  as  to  impress  my  correspondents  with  the  conviction 
that  the  President  relies  always  mainly  on  the  national  power,  and  not 
on  the  forbearance  of  those  Avho  it  is  apprehended  may  become  its  ene- 
mies, it  is  because  the  duty  of  drawing  forth  and  directing  the  armed 
power  of  the  nation  has  rested  upon  distinct  Departments,  while  to  this 
one  belonged  the  especial  duty  of  holding  watch  against  foreign  insult, 
intrusion,  and  intervention.  With  these  general  remarks  I  proceed  to 
explain  the  President's  views  in  regard  to  the  first  of  the  two  questions 
mentioned,  namely,  the  attitude  of  France  in  regard  to  the  civil  war 
in  the  United  States. 

"  We  know  from  many  soui-ces,  and  even  from  the  Emperor's  direct 
statement,  that,  on  the  breaking  out  of  the  insurrection,  he  adopted  the 
current  opinion  of  European  statesmen  that  the  eflbrts  of  this  Govern- 
ment to  maintain  and  jjreserve  the  Union  would  be  unsuccessful.  To 
this  prejudgment  we  attribute  his  agreement  with  Great  Britain  to  act 
in  concert  with  her  upon  the  questions  which  might  arise  out  of  the  in 
surrectioi!  ;  his  concession  of  a  belligerent  character  to  the  insurgents  ; 
kis  repejued  suggestions  of  accommodation  by  this  Government  with 
the  insurgents ;  and  his  conferences  on  the  subject  of  a  recognition.  It 
would  be  disingenuous  to  withhold  an  expression  of  the  national  convic- 
tion that  these  x)roceedings  of  the  Emperor  have  been  very  injurious  to  the 
ITnited  States,  by  encouraging  and  thus  prolonging  the  insurrection.  On 
the  other  hand,  no  statesman  of  this  country  is  able  to  conceive  of  a 
reasonable  motive,  on  the  part  of  either  France  or  the  Emperor,  to  do 
or  to  wish  injury  to  the  United  States.  Every  statesman  of  the  United 
States  cherishes  a  lively  interest  in  the  welfare  and  greatness  of  France, 
and  is  content  that  she  shall  enjoy  peacefully  and  in  unbounded  pros 
perity  the  administration,  of  the  Emperor  she  has  chosen.  We  have 
not  an  acre  of  territory  or  a  port  which  we  think  France  can  wisely 
covet;  nor  has  she  any  possession  that  we  could  accept  if  she  would 
resign  it  into  our  hands.  Nevertheless,  when  recurring  to  what  the 
Emperor  has  already  done,  we  cannot,  at  any  time,  feel  assured  that, 
under  mistaken  impressions  of  our  exposure,  he  might  not  commit  him- 
self still  further  in  the  way  of  encouragement  and  aid  to  the  insurgents. 
We  know  their  intrigues  in  Paris  are  not  to  be  lightly  regarded.  While 
the  Emperor  has  held  an  unfavorable  oi)inion  of  our  national  strength 
and  unity,  we,  on  the  cont'ary,  have  as  constantly  indulged  entire  coufi- 
320 


CHAP.  UlTf  MEXICO.  [^  58. 

<leiic('  ill  Ijolli.  Kot  iiR'ivly  tlie  course  of  events,  but  that  of  time,  also, 
ruus  against  the  insurgents  and  reinvigorates  the  national  strength  and 
power.  We  desire,  therefore,  that  he  may  have  the  means  of  niidei- 
standiug  the  actual  condition  of  affairs  in  our  country.  We  wish  to 
avoid  anything  calculated  to  irritate  France,  or  to  wound  the  just  pride 
and  proper  sensibilities  of  that  spirited  nation,  and  thus  to  free  our 
claim  to  her  forbearance,  in  our  present  political  emergency,  from  any 
cloud  of  passion  or  prejudice.  Pursuing  this  course,  the  President 
hopes  that  the  prejudgment  of  the  Emperor  against  the  stability  of  the 
Union  may  the  sooner  give  way  to  convictions  which  will  modify  his 
course,  and  bring  liiin  back  again  to  the  traditional  friendship  which 
he  found  existing  between  this  country  and  his  own,  when,  in  obedience 
to  her  voice,  he  assumed  the  reins  of  empire.  These  desires  and  pur 
poses  do  not  imply  either  a  fear  of  French  hostility,  or  any  neglect  of 
a  prudent  posture  of  national  self-reliance. 

"  The  subject  upon  which  I  propose  to  remark,  in  the  second  place, 
is  the  relation  of  France  toward  Mexico.  The  United  States  hold,  in 
regard  to  Mexico,  the  same  principles  tha1>  they  hold  in  regard  to  all 
other  nations.  They  have  neither  a  right  nor  a  disposition  to  inter- 
vene by  force  in  the  internal  affairs  of  Mexico,  whether  to  establish  and 
maintain  a  Republic  or  even  a  domestic  government  there,  or  to  over- 
throw an  imperial  or  a  foreign  one,  if  Mexico  chooses  to  establish  or 
accept  it.  The  United  States  have  neither  the  right  nor  the  disposition 
to  intervene  by  force  on  either  side  in  the  lamentable  war  which  is  going 
on  between  France  and  Mexico.  On  the  contrary,  they  practice  in  re- 
gard to  Mexico,  in  every  phase  of  that  war,  the  non-intervention  ^'hich 
they  require  all  foreign  powers  to  observe  in  regard  to  the  United  States. 
But,  notwithstanding  this  self-restraint,  this  Government  knows  full 
well  that  the  inherent  normal  opinion  of  Mexico  favors  a  government 
there  republican  in  form  and  domestic  in  its  organization,  in  preference 
to  any  monarchical  institutions  to  be  imposed  from  abroad.  This  Gov- 
ernment knows,  al8«,  that  this  normal  opinion  of  the  people  of  Mexico 
resulted  largely  from  thie  influence  of  popular  opinion  in  this  country, 
and  is  continually  invigorated  by  it.  The  President  believes,  moreover, 
that  this  popular  opinion  of  the  United  States  is  just  in  itself,  and  emi- 
nently essential  to  the  progress  of  civilization  on  the  American  conti- 
nent, which  civilization,  it  believes,  can  and  will,  if  left  free  from  Euro- 
pean resistance,  work  harmoniously  together  with  advancing  refinement 
on  the  other  continents.  This  Government  believes  that  foreign  resist 
ance,  or  attempts  to  control  American  civilization,  must  and  will  fail 
before  the  ceaseless  and  ever-increasing  activity  of  material,  moral,  an<l 
political  forces,  which  peculiarly  belong  to  the  American  continent. 
Nor  do  the  United  States  deny  that,  in  their  opinion,  their  own  safety 
and  the  cheerful  destiny  to  which  they  aspire  are  intimately  dependent 
on  the  continuance  of  free  republican  institutions  throughout  America. 
They  have  submitted  these  opinions  to  the  Emperor  of  France,  on  proper 

Q01 

S.  Mis.  162— VOL.  I 21 


§58.]  TNTERVENTTON.  [CHAP.  III. 

occasions,  as  woi-thy  of  his  serious  consideration,  in  determining'  how  he 
would  conduct  and  close  what  might  prove  a  successful  war  iu  Mexico. 
jSTor  is  it  necessary  to  practice  reserve  upon  the  point,  that  if  France 
should,  ui)on  due  consideration,  determine  to  adopt  a  policy  in  Mexico 
adverse  to  the  American  opinions  and  sentiments  which  I  have  described, 
that  policy  would  ])robal)ly  scatter  seeds  which  would  be  fruitful  of 
jealousies,  which  might  ultimately  ripen  into  collision  between  France 
and  the  United  States  and  other  American  Eepublics.  An  illustration 
of  this  danger  has  o(;curred  already.  Political  rumor,  which  is  always 
mischievous,  one  day  ascribes  ro  France  a  ])urpose  to  seize  the  Rio 
Grande,  and  wrest  Texas  from  the  United  States  ;  another  day  rumor 
advises  us  to  look  carefully  to  our  safety  on  the  Mississippi ;  another 
day  we  are  warned  of  coalitions  to  be  formed,  under  French  patronage, 
between  the  regency  established  in  Mexico  and  the  insurgent  cabal  at 
Richmond.  The  President  apprehends  none  of  these  things.  He  does 
not  allow  himself  to  be  disturl)ed  by  suspicions  so  unjust  to  France  and 
so  unjustifiable  in  themselves  ;  but  he  knows,  also,  that  such  suspicions 
will  be  entertained  more  or' less  extensively  by  this  country,  and  mag- 
nified in  other  countries  equally  unfriendly  to  France  and  to  America ; 
and  he  knows,  also,  that  it  is  out  of  such  suspicions  that  the  fatal  web 
of  national  animosity  is  most  frequently  woven.  He  believes  that  the 
Emperor  of  France  must  experience  desires  as  earnest  as  our  own  for 
the  preservation  of  that  friendship  between  the  two  nations  which  is  so 
full  of  guarantees  of  their  common  prosperity  and  safety.  Thinking 
this,  the  President  would  be  wanting  in  fidelity  to  France,  as  well  as  to 
our  own  country,  if  he  did  not  converse  with  the  Emperor  with  entire 
sincerity  and  friendship  upon  the  attitude  which  France  is  to  assume  in 
regard  to  Mexico.  The  statements  made  to  you  by  M.  Drouyn  de  I'Huys, 
concerning  the  Emperor's  intentions,  are  entirely  satisfactoiy,  if  we  are 
permitted  to  assume  them  as  having  been  authorized  to  bo  made  by  the 
Emperor  in  view  of  the  present  condition  of  affairs  in  Mexico.  It  is 
true,  as  I  have  before  remarked,  that  the  Emperor's  purposes  may  here- 
after change  with  changing  circumstances.  We,  ourselves,  however, 
are  not  unobservant  of  the  progress  of  events  at  home  and  abroad ;  and 
in  no  case  are  we  likely  to  neglect  such  provision  for  our  own  safety  as 
every  sovereign  state  must  always  be  prepared  to  fall  back  upon  when 
nations  with  which  they  have  lived  in  friendship  cease  to  respect  their 
moral  and  treaty  obligations.  Your  own  discretion  will  be  your  guide 
as  to  how  far  and  in  what  way  the  public  interests  will  be  promoted  by 
submitting  these  views  to  the  consideration  of  M.  Drouyn  de  PHuys." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Daytou,  Sept.  '26,  1863;  MSS.  Inst.,  France; 
Dip.  Corr.,  1863. 

"  You  have  proceeded  very  properly  in  giving  to  Count  Rechberg  a 
copy  of  my  dispatch  to  Mr.  Dayton  of  the  3d  of  March,  1862.     This 
Government  desires  to  practice  no  concealment  in  its  intercourse  with 
322 


CHAP.  III.]  MEXICO.  [§  58. 

foreign  states.  During  the  discussion  concerning  Mexico,  and  France, 
and  the  United  States,  which  has  been  going  on  in  Europe,  I  have 
refrained  from  instructing  you  to  speak  for  the  United  States.  This 
reserve  has  been  pra(;ticed  because  the  questions  immediately  concern 
only  the  three  states  mentioned,  and  the  personal  relation  to  them  of 
the  Austrian  grand  duke  is  an  incident  which  could  only  bring  the  Im- 
])erial  Royal  Government  under  any  responsibility  to  the  United  States 
when  that  Government  should  attempt  or  propose  to  violate  some  act- 
ual political  right  or  disregard  some  practical  interest  which  it  would 
be  the  duty  of  the  President  to  maintain  or  assert.  But  in  this  course 
of  proceeding  it  has  not  been  my  intention  to  deny  to  you  a  full  knowl- 
edge of  the  position  of  the  President  in  regard  to  the  questions  debated. 
France  is  at  war  with  Mexico  and  at  peace  with  the  United  States,  and 
a  civil  war  is  raging  in  the  United  States.  I  am  to  speak  of  the  atti- 
tude of  France  towards  the  United  States  in  relation  to  this  civil  war, 
and  also  to  speak  of  the  attitude  of  France  towards  Mexico,  as  it  bears 
on  the  United  States.  For  the  sake  of  perspicuity  I  keep  the  two  topics 
distinctly  separate,  and  I  treat  the  last  one  itirst. 

"  We  know  from  many  sources,  and  even  from  the  direct  statement 
of  the  Emperor  of  France,  that  on  the  breaking  out  of  the  insurrection 
he  adopted  the  then  current  opinion  of  European  statesmen  that  the 
eiforts  of  this  Government  to  suppress  it  would  be  unsuccessful.  To 
this  prejudgment  we  attribute  his  agreement  with  Great  Britain  to  act 
in  concert  with  her  upon  international  questions  which  might  arise  out 
of  the  conflict,  his  practical  concession  of  a  belligerent  character  to  the 
insurgents,  his  repeated  suggestions  of  accommodations  by  this  Gov- 
ernment with  the  insurgents,  and  his  conferences  on  the  subject  of  a 
recognition.  These  proceedings  of  the  Emperor  of  France  have  been 
very  injurious  to  the  United  States  by  encouraging  and  thus  prolong- 
ing the  insurrection.  On  the  other  hand,  no  statesman  of  this  country 
is  able  to  conceive  of  a  reasonable  motive  on  the  part  of  France  or  the 
Emperor  to  do  or  to  wish  injury  to  the  United  States.  Every  states- 
man in  the  United  States  cherishes  a  lively  interest  in  the  welfare  and 
greatness  of  France,  and  is  content  that  she  shall  peacefully  and  in 
unbounded  prosperity  enjoy  the  administration  of  the  Emperor  she  has 
chosen.  We  have  not  an  acre  of  territory  nor  a  fort  which  we  think 
France  could  wisely  covet,  nor  has  she  any  possession  that  we  could 
accept  if  she  would  resign  it  into  our  hands,  ^'evertbeless,  when  re- 
curring to  what  the  Emperor  of  France  has  already  done,  we  cannot 
at  any  time  feel  assured  that,  under  mistaken  imi)ressions  of  our  em- 
barrassments in  consequence  of  a  lamentable  civil  war,  he  may  not  go 
further  in  the  way  of  encouragement  to  the  insurgents,  whose  intrigues 
in  Paris  we  understand  and  do  not  underestimate.  While  the  Emperor 
of  France  has  held  an  unfavorable  oi>inion  of  our  national  strength 
and  unity,  we,  on  the  contrary,  have  as  constantly  indulged  an  entire 
confidence  in  both.    Not  merelj^  the  course  of  events,  but  that  of  time 

323 


§  58.]  INTERVENTIOX.  [CHAP.  III. 

also  opposes  the  insurrection  aud  reiuvigorates  the  national  stren^^th 
and  power.  Under  these  convictions  we  avoid  everything-  calculated 
to  irritate  France  l\v  wounding  the  just  pride  and  proper  sensibilities 
of  that  s{)irited  nation,  and  thus  we  hope  to  free  our  claim  to  her  just 
forbearance  in  our  })reseut  political  emergency  from  any  cloud  of  pas- 
sion or  prejudice.  Pursuing  this  course,  the  President  hopes  that  tLe 
prejudgment  of  the  Emperor  against  the  stability  of  the  Union  may 
give  way  to  considerations  which  will  modify  his  course  and  bring  him 
back  to  the  traditional  friendship  which  he  found  existing  between  tliis 
country  and  his  own  when,  in  obedience  to  her  voice,  he  assumed  the 
administration  of  her  Government.  These  desires  and  purposes  of  ours 
do  not  imply  either  a  fear  of  imperial  hostility  or  any  neglect  of  a  pru. 
dent  posture  of  national  self-reliance,  and  in  that  posture  we  constantly 
aim  to  stand. 

"  I  speak  next  of  the  relation  of  France  towards  Mexico.  Until  1860 
our  prestige  was  a  protection  to  her  and  to  all  other  republican  states 
on  this  continent.  That  prestige  has  been  temporarily  broken  up  by 
domestic  faction  and  civil  war.  France  has  invaded  Mexico,  and  war 
exists  between  those  two  countries.  The  United  States  hold,  in  regard 
to  these  two  states  and  their  conflict,  the  same  principle  that  they  hold 
in  relation  to  all  other  nations  and  their  mutual  wars.  They  have 
neither  a  right  nor  any  disposition  to  intervene  by  force  in  the  internal 
affairs  of  Mexico,  whether  to  establish  or  to  maintain  a  republican  or 
even  a  domestic  Government  there,  or  to  overthrow  an  imperial  or  a  for- 
eign one  if  Mexico  shall  choose  to  establish  or  accept  it.  The  United 
States  have  not  a  right  nor  a  disposition  to  intervene  by  force  on  either 
side  in  the  lamentable  war  which  is  going  on  between  France  and 
Mexico.  On  the  contrary,  they  practice,  in  regard  to  Mexico,  in  every 
phase  of  the  war,  the  non-intervention  w'hich  they  require  all  foreign 
powers  to  observe  in  regard  to  the  United  States.  But  notwithstand- 
ing this  self-restraint,  this  Government  knows  full  well  that  the  inher- 
ent normal  opinion  of  Mexico  favors  a  Government  there  republican 
in  form  and  democratic  in  its  organization  in  preference  to  any  mon- 
archical institutions  to  be  imposed  from  abroad.  This  Government 
knows  also  that  this  normal  opinion  of  the  people  of  Mexico  resulted 
largely  from  the  influence  of  popular  oi)inion  in  this  country,  which 
constantly  invigorates  it.  The  President,  moreover,  believes  that  this 
popular  opinion  of  the  United  States  is  just  in  itself  and  eminently 
essential  to  the  progress  of  civilization  on  the  American  continent, 
which  civilization  he  believes  can  and  will,  if  left  free  from  European 
resistance,  work  harmoniously  together  with  advancing  refinement  on 
the  other  continents.  This  Government  believes  that  all  foreign  resist- 
ance to  American  civilization,  and  all  attempts  to  control  it,  must  and 
will  fail  before  the  ceaseless  aud  ever-increasing  activity  of  material, 
moral,  and  political  forces  which  peculiarly  belong  to  the  American  con- 
324 


CHAP.  III.]  MEXICO.  [§  58. 

tiiieut.  ^ov  do  the  United  States  deny  that,  in  their  opinion,  their  own 
safety  and  tlie  cheerful  destiny  to  which  they  aspire  are  intimately  de- 
pendent on  the  continuance  of  free  republican  institutions  throughout 
America,  and  that  their  i)olicy  will  always  be  directed  to  that  end. 
They  have  frankly,  and  on  proper  occasions,  submitted  these  opinions 
to  the  Emperor  of  France,  as  worthy  of  serious  consideration,  in  deter- 
mining how  he  would  conduct  and  close  what  might  i)rove  a  successful 
war  in  Mexico.  Nor  do  we  ]>ractice  reserve  upon  the  point  that  if 
France  should,  upon  due  consideration,  determine  to  adopt  a  policy  in 
Mexico  adverse  to  the  American  opinions  and  sentiments  which  I  have 
described,  that  policy  would  probably  scatter  seeds  which  would  be 
fruitful  of  jealousies  that  might  ultimately  ripen  into  collisions  between 
France  and  the  United  States  and  other  American  Eepublics.  An  illus- 
tration of  this  danger  has  occurred  already.  Political  rumor,  which  is 
always  suspicious,  one  day  ascribes  to  France  a  purpose  to  seize  the 
Eio  Grande  and  wrest  Texas  from  the  United  States.  Another  day 
rumor  sidvises  us  to  look  carefullj-  to  our  safety  on  the  Mississippi. 
Another  day  we  are  warned  of  coalitions  to  be  formed  under  French 
patronage  between  the  regency  that  has  been  recently  set  up  at  the 
city  of  Mexico  and  the  insurgent  cabal  at  Richmond.  The  President 
apprehends  none  of  these  things,  and  does  not  allow  himself  to  be  dis- 
turbed by  suspicious.  But  he  knows  also  that  such  suspicions  will  be 
entertained  more  or  less  extensively  in  this  country,  and  will  be  mag- 
nified in  other  countries,  and  he  knows  also  that  it  is  out  of  such  sus- 
picions that  the  fatal  web  of  national  animosity  is  most  frequently 
woven.  The  President,  upon  the  assurances  which  he  has  received 
from  the  Emi)eror  of  France,  expects  that  he  will  neither  deprive  the 
people  of  Mexico  of  their  free  choice  of  government  nor  seek  to  main- 
tain any  permanent  occupation  or  dominion  there. 

"  It  is  true  that  the  purposes  or  policy  of  the  Emperor  of  France,  in 
these  respects,  may  change  with  changing  circumstances.  Although 
we  are  confiding,  we  are  not  therefore  unobservant,  and  in  no  case  are 
we  likely  to  neglect  such  provision  for  our  own  safety  as  every  people 
must  always  be  prepared  to  fall  back  upon  when  a  nation  with  which 
they  have  lived  in  friendship  ceases  to  respect  its  moral  and  treaty 
obligations. 

"In  giving  you  this  summary  of  our  positions,  I  have  simply  drawn 
off  from  the  records  the  instructions  under  which  Mr.  Dayton  is  acting 
at  Paris.  1  r<Mnaiu  of  the  opinion  that  national  dignity  is  best  con- 
served by  confining  the  discussion  of  these  affairs  to  the  Cabinets  of 
the  United  States,  France,  and  Mexico,  and  that  no  public  interest  is 
to  be  advanced  by  opening  it  at  Vienna,  and  therefore  I  do  not  direct 
you  to  communicate  this  dispatch  to  the  imperial  royal  court." 

Mr.  Sowi^nl,  Sec.  of  .State,   to  Mr.   Motley,  Oct.  9,  1863;  MSS.  Inst.,  Austria; 
Dip.  Corr.,  18d;}. 

325 


§  58.]  INTERVENTION.  [CHAP.  III. 

"  I  have  the  honor  to  acknowledge  the  reception  of  your  dispatch  of 
the  9th  instant  (No.  361),  which  brings  me  the  views  expressed  by  Mr. 
Dronyn  de  I'Huys  concerning  the  situation  in  Mexico.  Various  consid- 
erations have  induced  the  President  to  avoid  taking  any  part  in  the 
speculative  debates  bearing  on  that  situation  which  have  been  carried 
on  in  the  capitals  of  Europe  as  well  as  in  those  of  America.  A  deter- 
mination to  err  on  the  side  of  strict  neutrality,  if  we  err  at  all,  in  a  war 
which  is  carried  on  between  two  nations  with  which  the  United  States 
are  maintaining  relations  of  amity  and  friendship,  was  prominent  among 
the  considerations  to  which  I  have  thus  referred. 

"  The  United  States,  nevertheless,  when  invited  by  France  or  Mexico, 
cannot  omit  to  express  themselves  with  perfect  frankness  upon  new  in- 
cidents, as  they  occur,  in  the  progress  of  that  war.  Mr.  Drou^^n  de 
I'Huys  now  speaks  of  an  election  which  he  expects  to  be  held  in  Mex- 
ico, and  to  result  in  the  choice  of  His  Imperial  Highness  the  Prince 
Maximilian  of  Austria  to  be  Emperor  of  Mexico.  We  learn  from  other 
sources  that  the  prince  has  declared  his  willingness  to  accept  an  imperial 
throne  in  Mexico  on  three  conditions,  namely  :  First,  that  he  shall  be 
called  to  it  by  the  universal  suffrage  of  the  Mexican  nation ;  secondly, 
that  he  shall  receive  indispensable  guarantees  for  the  integrity  and  in- 
dependence of  the  proposed  Empire ;  and,  thirdly,  that  the  head  of  his 
family,  the  Emperor  of  Austria,  shall  acquiesce. 

"Eeferring  to  these  facts,  Mr.  Drouyn  de  I'Huys  intimates  that  an 
early  acknowledginent  of  the  proposed  Empire  by  the  United  States 
would  be  convenient  to  France,  by  relieving  her,  sooner  than  might  be 
possible  under  other  circumstances,  from  her  troublesome  complications 
in  Mexico. 

"  Happily  the  French  Government  has  uot  been  left  uninformed  that, 
in  the  opinion  of  the  United  States,  the  permanent  establishment  of  a 
foreign  and  monarchical  government  in  Mexico  will  be  found  neither 
easy  nor  desirable.  You  will  inform  Mr.  Dronyn  de  I'Huys  that  this 
opinion  remains  unchanged.  On  the  other  hand,  the  United  States 
cannot  aiiticii)ate  the  action  of  the  people  of  Mexico,  nor  have  they  the 
least  purpose  or  desire  to  interfere  with  their  proceedings,  or  control  or 
interfere  with  their  free  choice,  or  disturb  them  in  the  enjoyment  of 
whatever  institutions  of  government  they  may,  in  the  exercise  of  an  ab- 
solute freedom,  establish.  It  is  proper,  also,  that  Mr.  Drouyn  de  I'Huys 
should  be  informed  that  the  United  States  continue  to  regard  Mexico 
as  the  theater  of  a  war  which  has  not  yet  ended  in  the  subversion  of  the 
Government  long  existing  there,  with  which  the  United  States  remain 
in  the  relation  of  peace  and  sincere  friendship ;  and  that,  for  this  rea- 
son, the  United  States  are  not  now  at  liberty  to  consider  the  question 
of  recognizing  a  Government  which,  in  the  further  chances  of  war,  may 
come  into  its  i)lace.  The  United  States,  consistently  with  their  principles, 
can  do  no  otherwise  than  leave  the  destinies  of  Mexico  in  the  keeping 
of  her  own  people,  and  recognize  their  sovereignty  and  independence  in 
326 


CHAP.  III.]  MEXICO.  [§  58. 

whatever  form  they  themselves  shall  choose  that  this  sovereignty  and 
independence  shall  be  manifested." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  Oct.  23,  1863;  MSS.  Inst.,  France? 
Dip.  Corr.,  1863. 

On  April  4,  18(54,  it  was  resolved  without  dissent,  by  the  House  of 
Kepresentatives,  that  "  the  Cong^ress  of  the  United  States  are  unwilling 
by  silence  to  have  the  nations  of  the  world  under  the  impression  that 
they  aie  indifferent  spectators  of  the  deplorable  events  now  transpiring 
in  the  Eepublic  of  Mexico,  and  that  they  think  fit  to  declare  that  it  does 
not  accord  with  the  policy  of  the  United  States  to  acknowledge  any 
monarchical  government  erected  on  the  ruins  of  any  republican  govern- 
ment in  America  under  the  auspices  of  any  European  power." 

As  to  etiect  of  this  resolution  in  France,  see  Tuckei-'s  Monroe  Doct.,  103. 

Mr.  Seward's  report  of  May  28,  1864,  as  to  the  course  of  trade  between  the  United 

States  and  France  during  the  French  and  Mexican  war,  is  given  in  Senate 

Ex.  Doc.  No.  49,  38th  Cong.,  1st  sess. 
As  to  neutrality  observed  between  the  belligerents,  see   Mr.  Seward,   Sec.  of 

State  to  Mr.  de  Montholon,  Nov.  10,  1865  ;  MSS.  Notes,  France. 
Mr.  Seward's  policy  of  non-intervention   in  the  Maximilian  war  in  Mexico  is 

vindicated  in  103  N.  Am.  Rev.,  498,  Oct.,  1866. 

"  We  recognize  the  right  of  sovereign  nations  to  carry  on  war  with 
each  other  if  they  do  not  invade  our  right,  or  menace  our  safety  or  just 
influence.  The  real  cause  of  our  national  discontent  is  that  the  French 
army  which  is  now  in  Mexico  is  invading  a  domestic  republican  gov- 
ernment there,  which  was  established  by  her  jieople,  and  with  whom 
the  United  States  sympathize  most  profoundly,  for  the  avowed  purpose 
of  suppressing  it,  and  establishing  upon  its  ruins  a  foreign  monarchical 
government,  whoso  presence  there,  so  long  as  it  should  endure,  could 
not  but  be  regarded  by  the  people  of  the  United  States  as  injurious  and 
menacing  to  their  own  chosen  and  endeared  republican  institutions." 

Mr.  Seward,   Sec.  of  State,  ti>   Mr.  ili-  Montholon,   Dec.  6,   ISCiT) ;  MSS.  Notes, 
France. 

"  It  has  been  the  President's  purpose  that  France  should  be  respect- 
fully informed  upon  two  points,  namely;  first,  that  the  United  States 
earnestly  desire  to  ('ontinuc  and  to  cultivate  sincere  friendship  with 
France;  secondly,  that  this  policy  would  be  brought  into  imminent 
jeopardy  unless  France  could  deetii  it  (consistent  with  her  interest  and 
honor  to  desist  from  the  prosecution  of  armed  intervention  in  Mexico 
to  overthrow  the  domestic  republican  government  existing  there,  and 
to  establish  upon  its  ruins  the  foreign  monarchy  which  has  been  at- 
tempted to  be  inaugurated  in  the  capital  of  that  country." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Bigelow,  Dec.  16,  1S65;  MSS.  Inst.,  France. 
See  further,  same  to  same,  July  13,  1865. 
On  this  subject  see  Tucker's  Monroe  Doct.,  97  jf. 

As  to  French  occupation  of  Mexico,  see  Mr.  Seward's  report  uf  Dec.  21,  1865, 

with  documents  annexed;  Sen.  Ex.  Doc.  Nos.  5,  (i,  39th  Cong.,  1st  sess.    As  to 

French  evacuation  of  Mexico,  see  House  Ex    Doc.  No.  93, 39tli  Cong.,  Ist  sess. 

For  President's  message  on  Mexican  aftairs,  with  documents,  see  House  Ex. 

Doc.  No.  20,  30th  Cong..  1st  sess. 

327 


§  58. J  INTERVENTION.  [CHAP.  III. 

"  With  tlu\st'  explanations  [  proceed  to  say  that,  in  the  opinion  of 
the  President,  Fiance  need  not  for  a  moment  delay  her  promised  with- 
drawal of  military  forces  from  Mexico,  and  her  putting  the  principle  of 
non-intervention  into  fall  and  complete  practice  in  regard  to  Mexico, 
through  any  apprehension  that  the  United  States  will  i)rove  unfaithful 
to  the  principles  and  policy  in  that  respect,  which,  on  their  behalf,  it  has 
been  my  duty  to  maintain  in  this  now  very  lengthened  correspondence. 
The  practice  of  this  Government,  from  its  beginning,  is  a  guarantee  to 
all  nations  of  the  respect  of  the  American  people  for  the  free  sovereignty 
of  the  people  in  every  other  state." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  cle  Moutholou,  Feb.   12,  1860 ;  MSS.  Notes, 

France. 
For  vindication  of  the  policy  of  the  United  States  towards  Maximilian  and  the 

French  invasion  of  Mexico  in  1863-'6,  see  Mr.  Seward,  Sec.  of  State,  to  Mr. 

de  Montholon,  Ap.  25,  1866 ;  MSS.  Notes,  France. 

The  United  States,  it  was  said  by  Mr.  Seward,  in  a  letter  of  March 

19,  1866,  to  Mr.  Motley  (Austria),  "cannot  regard  with  unconcern"  the 

enlistment  in  Paris  of  troops  to  aid  the  Emperor  Maximilian  in  Mexico. 

See  also  Mr.  Seward,  Sec.  of  State,  to  Mr.  Motley,  March  19,  1866;  MSS.  Inst., 

Austria. 
Mr.  Seward's  report  on  Mexico,  of  March  20,  1866,  is  in  House  Ex.  Doc.  No.  73, 
39th  Cong.,  1st  sess. 

On  April  6, 1866,  Mr.  Motley  was  instructed  by  Mr.  Seward,  to  state  to 
the  Austrian  Government  "  that  in  the  event  of  hostilities  being  carried 
on  hereafter  in  Mexico  by  Austrian  subjects,  under  the  command  or  with 
the  sanction  of  the  Government  of  Vienna,  the  United  States  will  feel  them- 
selves at  liberty  to  regard  those  hostilities  as  constituting  a  state  of  war 
by  Austria  against  the  Eepublic  of  Mexico;  and  in  regard  to  such  war, 
waged  at  this  time  and  under  existing  circumstances,  the  United  States 
could  not  engage  to  remain  as  silent  and  neutral  spectators." 

See  also  Mr.  Seward  to  Mr.  Motley,  Ap.  16,  1866,  and  also  confidential  letter  of 
same  date,  in  which  Mr.  Motley  was  instructed  to  withdraw  from  Vienna 
in  case  troops  were  sent  from  Austria  to  Mexico.  The  result  was  that  no 
troops  were  sent  from  Austria  to  Mexico.  See  Mr.  Seward  to  Mr.  Motley, 
June  9,  1866  ;  MSS.  Inst.,  Austria. 

"  You  are  aware  that  a  friendly  and  explicit  arrangement  exists  be- 
tween this  Government  and  the  Emperor  of  France,  to  the  effect  that 
he  will  withdraw  his  expeditionary  military  forces  from  Mexico  in  three 
])arts  ;  the  first  of  which  shall  leave  Mexico  in  November  next,  the  sec- 
ond in  March  next,  and  the  third  in  iSTovember,  1867,  and  that  upon  the 
evacuation  being  thus  completed,  the  French  Government  will  imme- 
diately come  upon  the  ground  of  nonintervention  in  regard  to  Mexico 
which  is  held  by  the  United  States. 

"  Doubts  have  been  entertained  and  expressed  in  some  quarters  ujmn 
the  question  whether  the  French  Government  will  faithfully  execute 
this  agreement.  Xo  such  doubts  have  been  entertained  by  the  Presi- 
328 


CHAP.  III.]  MEXICO.  [§  58. 

(lent,  who  has  had  repeated  and  even  recent  assurances  that  the  coni- 
])lete  evacuation  of  Mexico  by  the  French  will  be  consummated  at  the 
periods  mentioned,  or  earlier  if  compatible  with  climatical,  military,  and 
other  conditions." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Campbell,  Oct.  25,  1866;  MSS.  lust.,  Mex. 

As  to  attempts  of  Santa  Anna  and  Ortego  in  1866  to  overthrow  Mexican  Gov- 
ernment, see  Mr.  Seward's  Rep.,  Dec.  14,  1866;  House  Ex.  Doc.  No.  17, 
39th  Cong.,  2d  sess. 

As  to  proceedings  in  Mexico  under  French  occupation,  see  Mr.  Seward's  report, 
Jan.  29,  1867  ;  House  Ex.  Doc.  No.  76,  .39th  Cong.,  2d  sess. 

As  to  subsequent  proceedings  in  Mexico,  see  Senate  Ex.  Doc.  No.  20,  40th  Cong., 
Ist  sess.;  House  Ex.  Doc.  No.  30,  40th  Cong.,  1st  sess. ;  House  Ex.  Doc.  No. 
31,  ibid. 

"The  revolution  which  recently  occurred  in  Mexico  was  followed  by 
the  accession  of  the  successful  party  to  power  and  the  installation  of 
its  chief.  General  Porfirio  Diaz,  in  the  Presidential  oflBce.  It  has  been 
the  custom  of  the  United  States,  when  such  changes  of  Government 
have  heretofore  occurred  in  Mexico,  to  recognize  and  enter  into  official 
relations  with  the  de  facto  Government  as  soon  as  it  should  appear  to 
have  the  approval  of  the  Mexican  people,  and  should  manifest  a  dispo- 
sition to  adhere  to  the  obligations  of  treaties  and  international  friend- 
ship. Ju  the  present  case  such  official  recognition  has  been  deferred  by 
the  occurrences  on  the  Rio  Grande  border,  the  records  of  which  have 
been  already  communicated  to  each  house  of  Congress,  in  answer  to 
their  respective  resolutions  of  inquiry.  Assurances  have  been  received 
that  the  authorities  at  the  seat  of  the  Mexican  Government  have  both 
the  disposition  and  the  ])ower  to  prevent  and  punish  such  unlawful  in- 
vasions and  depredations.  It  is  earnestly  to  be  hoped  that  events  may 
prove  these  assurances  to  be  well  founded.  The  best  interests  of  both 
countries  require  the  maintenance  of  peace  upon  the  border,  and  the 
development  of  commerce  between  the  two  Republics.     (See  infra,  §  70.) 

"It  is  gratifying  to  add  that  this  temporary  interruption  of  official 
relations  has  not  prevented  due  attention  by  the  representatives  of  the 
United  States  in  Mexico  to  the  protection  of  American  citizens,  so  far 
as  i)racticable.  Xor  has  it  interfered  with  the  prompt  payment  of  the 
amounts  due  from  Mexico  to  the  United  States  under  the  treaty  of  July 
4,  1868,  and  the  awards  of  the  joint  commission.  While  I  do  not  an- 
ticipate an  interruption  of  friendly  relations  with  Mexico,  yet  I  cnnnot 
but  look  with  some  solicitude  upon  a  continuance  of  border  disorders 
as  exposing  the  two  countries  to  initiations  of  popular  feeling  and  mis- 
chances of  action  which  are  naturally  unfavorable  to  complete  amity. 
Firmly  determined  that  nothing  shall  be  wanting  on  my  part  to  ])ro- 
mote  a  good  understanding  between  the  two  nations,  I  yet  must  ask 
the  attention  of  Congress  to  the  actual  occuirences  on  the  border,  that 
the  lives  and  property  of  our  citizens  may  be  adequately  protected  and 
peace  preserved." 

President  Hayes,  First  Annual  Message,  1877. 

329 


§  58.]  INTERVENTION.  [CHAP.  III. 

"Since  the  resumption  of  diplomatic  relations  with  Mexico,  corre- 
spondence has  been  opened,  and  still  continues,  between  the  two  Govern- 
ments upon  the  various  questions  which  at  one  time  seemed  to  endanger 
their  relations.  While  no  formal  agreement  has  been  reached  as  to  the 
troubles  on  the  border,  much  has  been  done  to  repress  and  diminish 
them.  The  effective  force  of  United  States  troops  on  the  Rio  Grande, 
by  a  strict  and  faithful  compliance  with  instructions,  has  done  much  to 
remove  the  sources  of  dispute,  and  it  is  now  understood  that  a  like  force 
of  Mexican  troops  on  the  other  side  of  the  river  is  also  making  an 
energetic  movement  against  the  marauding  Indian  tribes.  This  Gov- 
ernment looks  with  the  greatest  satisfaction  upon  every  evidence  of 
strength  in  the  national  authority  of  Mexico,  and  upon  every  effort  put 
forth  to  prevent  or  to  punish  incursions  upon  our  territory.  Reluctant 
to  assume  any  action  or  attitude  in  the  control  of  these  incursions,  by 
military  movements  across  the  border,  not  imperatively  demanded  for  the 
protection  of  the  lives  and  property  of  our  own  citizens,  I  shall  take  the 
earliest  opportunity,  consistent  with  the  proper  discharge  of  this  plain 
duty,  to  recognize  the  ability  of  the  Mexican  Government  to  restrain 
effectively  violations  of  our  territory.  It  is  proposed  to  hold  next  year 
an  international  exhibition  in  Mexico,  and  it  is  believed  that  the  dis- 
play of  the  agricultural  and  manufacturing  products  of  the  two  nations 
will  tend  to  better  understanding  and  increased  commercial  intercourse 
between  their  people." 

President  Hayes,  Second  Annual  Message,  1878. 

"  As  the  relations  between  the  Government  of  the  United  States 
and  that  of  Mexico  happily  grow  more  amicable  and  intimate,  it  is  but 
natural  that  a  disposition  should  in  like  manner  develop  itself  between 
the  citizens  of  the  respective  countries  to  seek  new  means  of  fostering 
their  material  interests,  and  that  the  ties  which  spring  from  commercial 
interchange  should  tend  to  grow  and  strengthen  with  the  growing  and 
strengthening  spirit  of  good-will  which  animates  both  peoples.  That 
this  spirit  exists  is  one  of  the  most  evident  proofs  that  the  frank  and 
conciliatory  policy  of  the  United  States  towards  Mexico  has  borne  and 
is  bearing  good  fruit.  It  is  especially  visible  in  the  rapidly  extending 
desire  on  the  part  of  the  citizens  of  this  country  to  take  an  active  share 
in  the  prosecution  of  those  industrial  enterprises  for  which  the  magnifi- 
cent resources  of  Mexico  offer  so  broad  and  promising  a  field,  and  in  the 
responsive  and  increasing  disposition  which  is  manifest  on  the  part  ot 
the  Mexican  people  to  welcome  such  projects.  iSTo  fact  in  the  historical 
relations  of  the  two  great  Republics  of  the  northern  continent  is  more 
fraught  with  happy  promises  for  both,  and  it  is  a  source  of  especial  grati- 
fication to  this  Government  that  the  jealousies  and  distrusts  which  have 
at  times  in  the  past  clouded  the  perfect  course  of  the  mutual  relations 
of  the  two  Goveruments  are  thus  yielding  to  the  voore  vvholesoin".'  sjiirit 
of  reciprocal  frankness  and  confidence 
330 


CHAP.  III.]  MEXICO.  [§  58. 

*•  It  seems  to  me  proper  at  this  time,  v^heii  a  new  Administratiou  has 
constitutionally  and  peaceliilly  come  into  power  in  Mexico,  devoted  to 
fuUilling  and  extending  the  just  policy  of  its  predecessor,  to  call  your 
attention  to  those  general  precepts  which,  in  the  judgment  of  the  Presi- 
dent, should  govern  the  relations  between  the  two  Republics,  and  to 
bear  testimony  to  which  will  be  your  most  important  duty  as  the  diplo- 
matic representative  of  the  United  States. 

"The  record  of  the  last  fifteen  years  must  have  lenjoved  from  the 
minds  of  the  enlightened  statesmen  of  Mexico  any  possibly  lingering 
doubt  touching  the  policy  of  the  United  States  toward  her  sister  Re- 
l)ul)lic.  That  policy  is  one  of  faithful  and  impartial  recognition  of  the 
independence  and  the  integrity  of  the  Mexican  nation.  At  this  late 
day  it  needs  no  disclaimer  on  our  part  of  the  existence  of  even  the 
faintest  desire  in  the  United  States  for  territorial  extension  south  of  the 
Rio  Grande.  The  boundaries  of  the  two  Republics  have  been  long  set- 
tled in  conformity  with  the  best  jurisdictional  interests  of  both.  The 
line  of  demarkation  is  not  conventional  merely.  It  is  more  than  that. 
It  separates  a  Spanish- American  i)eople  from  a  Saxon- American  people. 
It  divides  one  great  nation  from  another  with  distinct  and  natural 
finality.  The  increasing  prosperity  of  both  comnionwealths  can  only 
draw  into  closer  union  the  friendly  feeling,  the  i)olitical  sympathy,  and 
the  correlated  interests  which  their  history  and  neighborhood  have 
created  and  encouraged.  In  all  your  intercourse  with  the  Mexican 
Government  and  people  it  must  be  your  chiefest  endeavor  correctly  to 
reflect  this  firm  conviction  of  your  Government. 

"  It  has  been  the  fortunate  lot  of  this  country  that  long  years  of  peace 
and  prosperity — of  constant  devotion  to  the  arts  and  industries  which 
make  the  true  greatness  of  a  nation — have  given  to  the  United  States 
an  abundance  of  skilled  labor,  a  wealth  of  active  and  competent  enter- 
prise, and  a  large  accumulation  of  capital,  for  which  even  its  own  vast 
resources  fail  to  give  full  scope  ibr  the  untiring  energy  of  its  citizens. 
It  is  but  natural,  therefore,  that  a  part  of  this  great  store  of  national 
vitality  should  seek  the  channels  which  are  offered  by  the  wonderful  and 
scarcely  developed  resources  of  oNTexico,  and  that  American  enterprise 
and  capital  should  tend  to  fin<l  their  just  employment  in  building  up 
the  internal  prosperity  of  that  Repul)lic  on  like  firm  bases,  and  in  open- 
ing new  commercial  relationship  between  the  two  cou'.itries. 

"  It  is  a  source  of  profound  gratification  to  the  Government  of  the 
United  States  that  the  political  condition  of  Mexico  is  so  apparently 
and  assuredly  in  the  path  of  stability,  and  the  administration  of  its 
constitutional  (xovernment  so  regular,  that  it  can  otter  to  foreign  capital 
that  just  and  certain  protection  without  which  the  prospect  even  of  ex- 
travagant profit  will  fail  to  tempt  the  extension  of  safe  and  enduring 
commercial  and  industrial  enterprise.  It  is  still  more  gratifying  that 
with  a  full  comprehension  of  the  great  political  and  social  advantages 
of  such  a  mode  of  developing  the  material  resources  of  the  country,  the 

331 


§  58.]  INTERVENTION.  [CHAP.  III. 

Government  of  Mexico  cordially  lends  its  influence  to  the  spirit  of  wel- 
come and  encouragement  with  which  the  Mexican  people  seem  disposed 
to  greet  the  importation  of  wealth  and  enterprise  in  their  midst.  The 
progress  now  making  in  this  direction  by  the  National  Government  of 
Mexico  is  but  an  earnest  of  tlie  great  good  which  may  be  accomplished 
when  the  intimate  and  necessary  relations  of  the  two  countries  and  peo- 
ples are  better  understood  than  now.  To  conduce  to  this  better  under- 
standing must  be  your  constant  labor.  While,  therefore,  carefully 
avoiding  all  appearance  of  advocacy  of  any  individual  undertaking 
which  citizens  of  the  United  States  may  desire  to  initiate  in  Mexico, 
you  will  take  every  opportunity  which  you  may  deem  judicious  to  make 
clear  the  spirit  and  motive  which  control  this  movement  in  the  direction 
of  developing  Mexican  resources,  and  will  impress  upon  the  Government 
of  Mexico  the  earnest  wish  and  hope  felt  by  the  people  and  Government 
of  this  country  that  these  resources  may  be  multiplied  and  rendered 
fruitful  for  the  primary  benefit  of  the  Mexican  people  themselves ;  that 
the  forms  of  orderly,  constitutional,  and  stable  government  may  be 
strengthened  as  domestic  wealth  increases  and  as  the  conservative 
spirit  of  widely  distributed  and  permanent  vested  interests  is  more  and 
more  felt ;  that  the  administration  of  the  Mexican  finances,  fostered  by 
these  healthful  tendencies,  may  be  placed  on  a  firm  basis ;  that  the 
rich  sections  of  the  great  territory  of  the  Republic  may  be  brought  into 
closer  intercommunication;  in  a  word,  that  Mexico  may  quickly  and 
beneficially  attain  the  place  toward  which  she  is  so  manifestly  tending 
as  one  of  the  most  powerful,  well-ordered,  and  j^rosperous  states  in  the 
harmonious  system  of  western  Eepublics. 

"  In  future  dispatches  more  detaik^d  instructions  will  be  given  you 
toucliing  certain  points  of  interest  to  the  two  Governments  in  the  direc- 
tion of  an  enlarged  reciprocal  trade  and  interchange  of  commodities. 
It  is  my  present  design  simply  to  acquaint  you  with  the  President's 
views  and  feeling  toward  Mexico  and  the  spirit  which  will  animate  his 
policy." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Morgan,  June  1,  1881 ;  MSS.  Inst.,  Mex.  ;  For. 
Rel.,  1881. 

"  I  had  hardly  completed  my  instruction  to  you  of  the  16th  instant, 
2S^o.  138,  when  information  reached  me  from  the  United  States  minister 
at  the  Guatemalan  capital,  placing  in  a  still  graver  light  the  condition 
of  the  relations  between  Mexico  and  Guatemala,  touching  the  possession 
of  the  territory  of  Soconusco.  In  fact,  so  serious  is  the  apprehension 
caused  in  the  niitul  of  the  President  by  these  untoward  reports,  that  I 
feel  constrained  to  supplement  my  previous  instructions  to  you  on  the 
subject  with  even  more  of  energy  and  succinctness. 

"  It  appears  now  as  though  the  movement  on  the  part  of  Mexico  was 
not  merely  to  obtain  i)ossession  of  the  disputed  territory,  but  to  precip- 
itate hostilities  with  Guatemala,  with  the  ultimate  view  of  extending 
332 


CHAP.  III.]  MEXICO.  [§  58. 

lier  borders  by  actual  conquest,  fiarge  botlicH  of  Mexican  troops  are 
said  to  be  on  their  way  to  Socoiiusco,  and  the  exigency  is  reported  to 
be  so  alarming-  that  plans  for  luitional  defeuse  are  n])perino8t  in  tlie 
minds  of  President  Barrios  and  his  advisers.  Frequent  border  raids 
into  Guatemalan  territory  have  inflamed  the  passions  of  the  residents 
of  the  frontier  country,  and  the  imminence  of  a  collision  is  very  great. 
Of  the  possible  consequence  of  war  it  may  be  premature  to  speak,  but 
the  information  possessed  by  the  Department  intimates  the  j)robable 
extension  of  hostilities  to  the  other  Central  American  states  and  their 
eventual  absorption  into  the  Mexican  federal  system. 

"I  cannot  believe  it  possible  that  these  designs  can  seriously  enter  into 
the  policy  of  the  Mexican  Government.  Of  late  years  the  American 
movement  toward  fixity  of  boundaries  and  abstention  from  territorial 
enlargement  has  been  so  marked,  and  so  necessarily  a  part  of  the  con- 
tinental policy  of  the  American  Eepublics,  that  any  departure  there- 
from becomes  necessarily  a  menace  to  the  interests  of  all. 

"  This  is  a  matter  touching  which  the  now  established  policy  of  the 
Government  of  the  United  States  to  refrain  from  territorial  acquisition 
gives  it  the  right  to  use  its  friendly  oifices  in  discouragement  of  any 
movement  on  the  part  of  neighboring  States  which  may  tend  to  dis- 
turb the  balance  of  power  between  them.  More  than  this,  the  mainte- 
nance of  this  honorable  attitude  of  example  involves  to  a  large  extent  a 
moral  obligation  on  our  part,  as  the  strong  but  disinterested  friend  of 
all  our  sister  states,  to  exert  our  influence  for  the  preservation  of  the 
national  life  and  integritj'  of  any  one  of  them  against  aggression, 
whether  this  may  come  from  abroad  or  from  another  American  Republic. 

"  No  state  in  the  American  system  has  more  unequivocally  condemned 
the  forcible  extension  of  domain,  at  the  expense  of  a  weaker  neighbor, 
than  Mexico  herself;  and  no  state  more  heartily  concurs  in  the  con- 
demnation of  fiiibusterism  in  every  form  than  the  United  States.  It  is 
clearly  to  the  mutual  interest  of  the  two  countries,  to  whose  example 
the  success  of  republican  institutions  on  this  contfnent  is  largely  due, 
that  their  policy  in  this  regard  should  be  identical  and  unmistakable. 

"As  long  as  the  broadened  international  diplomacy  of  our  day  aifords 
peaceable  recourse  to  principles  of  equity  and  justice  in  settlement  of 
controversies  like  that  between  Mexico  and  Guatemala,  the  outbreak 
of  a  war  between  them  would,  in  the  judgment  of  the  President,  involve 
much  farther-reaching  results  than  the  mere  transitory  disturbance  of 
the  entente  cordiale  so  much  desired  by  the  United  States  Government 
between  all  the  American  Republics.  Besides  the  transfers  of  territory 
which  might  follow  as  enforced  compensation  for  the  costs  of  a  war,  it 
is  easy  to  foresee  the  serious  complications  and  consequent  dangers  to 
the  American  system,  should  an  opening  be  alibrded  to  foreign  powers 
to  throw  their  influence  or  force  into  the  scale  in  determination  of  the 
contest.  Mexico  herself  has  but  too  recently  recovered  from  the  effects 
of  such  a  foreign  constraint  not  to  appreciate  at  its  full  force  the  con- 

333 


§  58.]  INTERVENTION.  [OHAP.  III. 

sideratiou  tluis  ])resente{l.  The  ]>eaceful  raainteiiance  of  tlie  utatvs  qno 
of  the  Ameiioaii  coniiuouwealths  is  of  the  very  esseuce  of  their  policy 
of  harmonious  alliance  for  self-preservation,  and  is  of  even  more  impor- 
tance to  Mexico  than  to  the  United  States. 

"  I  have  adverted  in  my  ]S^o.  138  to  the  desire  of  the  United  States  that 
its  neighbors  should  possess  strong  and  prosperous  Governments,  to  the 
assurance  of  their  tranquillity  from  internal  disturbance  and  outside  in- 
terference. While  we  wish  this  happy  result  for  Mexico,  we  equally 
wish  it  for  the  other  Spanish-American  nations.  It  is  no  less  indispen- 
sable to  the  welfare  of  Central  America  than  of  Mexico,  and,  by  moral 
influence  and  the  interposition  of  good  offices,  it  is  the  desire  and  the 
intention  of  the  United  States  to  hold  up  the  Eepublics  of  Central 
America  in  their  old  strength  and  to  do  all  that  may  be  done  toward 
insuring  the  tranquillity  of  their  relations  among  themselves  and  their 
collective  security  as  an  association  of  allied  interests,  possessing  in 
their  common  relationship  to  the  outer  world  all  of  the  elements  of 
national  existence.  In  this  enlarged  policy  we  confidently  ask  the  co- 
operation of  Mexico.  A  contrary  coarse  on  her  part  would  only  be 
regarded  as  an  unwise  step,  while  any  movement  directly  leading  to  the 
absorption,  in  whole  or  part,  of  her  weaker  neighbors  would  be  deemed 
an  act  unfriendly  to  the  best  interests  of  America. 

"  It  is  desired  that  you  should  make  earnest  but  calm  representation 
of  these  views  of  the  President  to  the  Mexican  minister  of  foreign  affairs. 
In  addition  to  embodying  the  main  points  of  my  previous  instruction, 
No.  138,  you  will  make  use  of  such  temperate  reasoning  as  will  serve  to 
show  Seuor  Mariscal  that  we  expect  every  eftbrt  to  be  made  by  his  Gov- 
ernment to  avert  a  conflict  with  Guatemala,  by  diplomatic  means,  or, 
these  failing,  by  resort  to  arbitration.  And  you  will  especially  intimate 
discreetly,  but  distinctly,  that  the  good  feeling  between  Mexico  and  the 
United  States  will  be  fortified  by  a  frank  avowal  that  the  Mexican  policy 
toward  the  neighboring  states  is  not  one  of  conquest  or  aggrandize- 
ment, but  of  conciliation,  i)eace,  and  friendship. 

"  I  have  written  this  instruction  rather  to  strengthen  jour  own  hands 
in  the  execution  of  the  delicate  and  responsible  duty  thus  confided  to 
you  than  with  a  view  to  its  formal  communication  to  Senor  Mariscal 
by  reading  and  leaving  a  copy  of  it  with  him.  If,  in  your  discretion, 
the  important  ends  in  view  will  be  subserved  by  your  making  the  min- 
ister acquainted  with  portions  hereof,  you  are  at  liberty  to  do  so,  while 
regai'diug  the  instruction  as  a  whole  in  a  confidential  light,  and  as  suj)- 
plementary  to  my  IS^o.  138,  which  you  have  been  authorized  to  commu- 
nicate in  extenso,  if  desirable." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Morgan,  June  21,  1881 ;  MSS.  Inst.  Mex.  ;  For, 
Eel.,  1881. 

"Referring to  your  correspondence  with  this  Department  since  its  in- 
struction tendering  the  good  offices  of  the  Government  of  the  United 
334 


CHAP.  ITT.]  MEXICO.  [§  58. 

States  in  aid  of  the  amicable  settlement  of  the  dittoieuces  between 
Mexico  and  Guatemala,  I  have  to  remark  that  it  wouhi  be  a  matter  of 
the  gravest  disappointment  if  1  found  myself  compelled  to  agree  with 
you  in  the  conclusion  which  you  seem  to  have  reached  in  your  last  dis- 
patch. 

"  Beporting  in  your  No.  273,  of  September  22, 1881,  your  most  recent 
conversation  with  Sefior  Mariscal,  the  Mexican  secretary  for  foreign 
affairs,  you  say : 

"  '  I  venture  to  suggest  that,  unless  the  Government  is  prepared  to 
announce  to  the  Mexican  Government  that  it  will  actively,  if  necessary, 
preserve  the  peace,  it  would  be  the  part  of  wisdom  on  our  side  to 
leave  the  matter  where  it  is.  Negotiations  on  the  subject  will  not  ben- 
efit Guatemala,  and  you  may  depend  upon  it  what  we  have  already 
done  in  this  direction  has  not  tended  to  the  increasing  of  the  cordial 
relations  which  I  know  it  is  so  much  your  desire  to  cultivate  with  this 
nation.' 

"  '  To  leave  the  matter  where  it  is,'  you  must  perceive,  is  simply  impos- 
sible, for  it  will  not  remain  there.  The  friendly  relations  of  the  United 
States  and  Mexico  would  certainly  not  be  promoted  by  the  refusal  of 
the  good  offices  of  this  Government,  tendered  in  a  spirit  of  the  most 
cordial  regard  both  for  the  interests  and  honor  of  Mexico,  and  suggested 
only  by  the  earnest  desire  to  prevent  a  war  useless  in  its  purpose, 
deplorable  in  its  means,  and  dangerous  to  the  best  interests  of  all  the 
Central  American  llepiiblics  in  its  consequences.  To  put  aside  such 
an  amicable  intervention  as  an  unfriendly  intrusion,  or  to  treat  it  as  I 
regret  to  see  the  Mexican  secretary  for  foreign  affairs  seems  disposed, 
as  a  partisan  manifestation  on  behalf  of  claims  which  we  have  not  ex- 
amined and  interests  which  we  totally  misunderstand,  can  certainly  not 
contribute  '  to  the  increasing  of  the  cordial  relations  which  you  know 
it  is  so  much  our  desire  to  cultivate  with  Mexico.' 

"  But,  more  than  this,  '  to  leave  the  matter  where  it  is '  is  to  leave 
Mexico  and  Guatemala  confronting  each  other  in  armed  hostility,  with 
the  certainty  that  irritation  and  anger  on  the  one  side  and  extreme  ap- 
prehension on  the  other  will  develop  some  untoward  incident  leading  to 
actual  collision.  In  such  event  no  successfull  resistance  can  be  antici- 
pated on  the  i)art  of  Guatemala.  Whether  the  claims  of  Mexico  be 
moderate  or  extravagant,  whether  the  cession  of  territory  be  confined 
to  the  present  alleged  boundary  lines  or  be  extended  to  meet  the 
necessities  of  a  war  indemnity,  there  would  be  another  lamentable  de- 
monstration on  this  continent  of  the  so  called  right  of  conquest,  the 
general  disturbance  of  the  friendly  relations  of  the  American  Republics, 
and  the  postponement  for  an  indefinite  period  of  that  sympathy  of  feel- 
ing, that  community  of  purpose,  and  that  unity  of  interest,  upon  the 
development  of  which  depends  the  future  prosperity  of  these  countries. 

*'  The  Republic  of  Guatemala,  one  of  those  American  Republics  in 
whose  fortunes  the  United  States  naturally  feel  a  friendly  interest,  com- 

335 


§  58.]  INTERVENTION.  [CHAP.  IM. 

iminicated  to  this  Govermnent  that  there  exisited  between  it  aiul  i\!t'x- 
ico  certain  dinVrences  which,  aftir  much  dii)l()niatic  consultation,  had 
failed  to  reach  a  satislactory  settlement.  Kecognizing  the  relation  of 
the  United  States  to  all  the  Republics  of  this  continent,  aware  of  the 
friendly  services  which  this  Government  has  never  failed  to  render  to 
Mexico,  and  presuming  not  unnaturally  that  Mexico  would  receive  our 
amicable  counsel  with  cordiality  and  confidence,  the  GovernmQnt  of 
Guatemala  asked  our  good  ofiBces  with  that  power  for  the  purpose  of 
inducing  it  to  submit  to  an  impartial  arbitration  those  differences  upon 
which  they  had  been  unable  to  agree. 

"  To  refuse  such  a  request  would  not  only  have  been  a  violation  of  in- 
ternational courtesy  to  Guatemala,  but  an  indication  of  a  want  of  con- 
fidence in  the  purposes  and  character  of  the  Mexican  Government  which 
we  could  not  and  did  not  entertain. 

"  In  tendering  our  good  oflBces,  the  Mexican  Government  was  dis- 
tinctly informed  that  'the  United  States  '  is  not  a  self-constituted  arbi- 
trator of  the  destinies  of  either  country  or  of  both  in  this  matter.  It  is 
simply  the  impartial  friend  of  both,  ready  to  tender  frank  and  earnest 
counsel  touching  anythnig  which  may  menace  the  peace  and  prosperity 
of  its  neighbors.' 

"  Before  this  instruction  could  have  reached  you.  Information  was  re- 
ceived that  large  bodies  of  Mexican  troops  had  been  ordered  to  the  front- 
ier in  dispute.  You  were  therefore  directed  to  urge  upon  the  Mexican 
Government  the  propriety  of  abstaining  from  all  such  hostile  demon- 
stration in  order  to  aflbrd  opportunity  for  the  friendly  solution  of  the 
differences  between  the  two  Governments.  It  is  unnecessary  now  to  re- 
peat the  reasons  which  you  were  instructed  to  submit  to  the  considera- 
tion of  the  Mexican  Government,  and  which  were  stated  in  the  most 
earnest  and  friendly  spirit,  and  which  were  communicated  by  you  to  the 
Mexican  secretary  for  foreign  affairs  with  entire  fidelity. 

"  I  now  learn  from  your  dispatches  that  our  information  was  correct ; 
that  Mexican  troops  have  been  ordered  to  the  disputed  boundary  line, 
and  that,  while  the  Mexican  Government  does  not  absolutely  reject  a 
possible  future  arbitration,  it  is  unwilling  to  postpone  its  own  action  to 
further  discussion,  and  does  not  receive  the  good  oflBces  of  this  Govern- 
ment in  the  spirit  in  which  they  have  been  tendered.  The  United 
States  does  not  pretend  to  direct  the  policy  of  Mexico,  nor  has  it  made 
any  pretension  to  decide  in  advance  upon  the  merits  of  the  controversy 
between  Mexico  and  Guatemala.  The  Mexican  Government  is  of  course 
free  to  decline  our  counsel,  however  friendly.  But  it  is  necessary  that 
we  should  know  distinctly  what  the  Mexican  Government  has  decided. 
It  is  useless,  and  from  your  dispatches  I  infer  it  would  be  irritating,  to 
keep  before  the  Govermnent  of  Mexico  the  offer  of  friendly  intervention, 
while,  on  the  other  hand,  it  would  not  be  just  to  Guatemala  to  hold  that 
Government  in  suspense  as  to  whether  there  was  a  possibility  of  the 
acceptance  of  the  amicable  mediation  which  we  have  offered. 
336 


CHAP,  inTJ"  MEXICO.  [§  58. 

"  Von  V.  ill,  llu'iefore,  upon  the  receipt  of  this  iiistruction,  ask  for  an  in- 
terview with  the  secretary  for  foreign  affairs.  You  will  press  uiK)n  his 
reconsideration  the  views  which  you  have  already  submitted  to  him ; 
assure  him  of  the  earnestness  with  which  this  Government  desires  a 
peaceful  solution  of  the  existing  differences,  and  inform  him  of  our  pro- 
found regret  and  disappointment  that  the  tender  of  our  good  offices 
has  not  been  received  in  the  spirit  in  which  it  was  made.  *  *  *  In 
reference  to  the  union  of  the  Central  American  Republics,  under  one  fed- 
eral government,  the  United  States  is  ready  to  avow  that  no  subject 
api)eals  more  strongly  to  its  sympathy,  nor  more  decidedly  to  its  judg- 
ment. Nor  is  this  a  new  i)olicy.  For  many  years  this  Government  has 
urged  upon  the  Central  American  States  the  importance  of  such  an 
union  to  the  creation  of  a  well-ordered  and  constitutionally  governed 
Republic,  and  our  ministers  have  been  instructed  to  impress  this  upon 
the  individual  Governments  to  which  they  have  been  accredited,  and 
to  the  Central  American  statesmen  with  whom  they  have  been  asso- 
ciated. And  we  have  always  cherished  the  belief  that  in  this  effort  we 
had  the  sincere  sympathy  and  cordial  cooperation  of  the  Mexican  Gov- 
ernment. Under  the  conviction  that  the  future  of  the  people  of  Central 
America  was  absolutely'  dependent  upon  the  establishment  of  a  federal 
government  which  would  give  strength  abroad  and  maintain  peace  at 
home,  our  chief  motive  in  the  recent  communications  to  Mexico  was  to 
prevent  the  diminution,  either  political  or  territorial,  of  any  one  of  these 
States,  or  the  disturbance  of  their  exterior  relations,  in  order  that, 
trusting  to  the  joint  aid  and  friendship  of  Mexico  and  theUnited  States, 
they  might  be  encouraged  to  persist  in  their  effort  to  establish  a  gov- 
ernment which  would,  both  for  their  advantage  and  ours,  represent 
their  combined  wealth,  intelligence,  and  character. 

"  If  this  Government  is  expected  to  infer  from  the  language  of  Seiior 
Mnriscal  that  the  prospect  of  such  a  result  is  not  agreeable  to  the 
policy  of  Mexico,  and  that  the  interest  which  the  United  States  have 
always  manifested  in  its  consummation  renders  unwelcome  the  friendly 
intervention  which  we  have  offered,  I  can  only  say  that  it  deepens  the 
regret  with  which  we  will  learn  the  decision  of  the  Mexican  Govern- 
ment, and  compels  me  to  declare  that  the  Government  of  the  United 
States  will  consider  a  hostile  demonstration  against  Guatemala  for  the 
avowed  purjjose,  or  with  the  certain  result  of  weakening  her  power  in 
such  an  <?ffbrt,  as  an  act  not  in  consonance  with  the  position  and  char- 
acter of  Mexico,  not  in  harmony  with  the  friendly  relations  existing 
between  us,  und  injurious  to  the  best  interests  of  all  the  Republics  of  this 
continent. 

"  The  Government  of  the  United  States  has  the  sincerest  sympathy 

and  the  proloundest  interest  in  the  prosperity  of  the  Spanish  Republics 

of  America,  and  is  iniiuenced  by  no  selfish  considerations  in  il^s  earnest 

efforts  to  prevent  war  between  them.    This  country  will  continue  its 

S.  Mis.  1G2— VOL.  I 22  *        337 


§  58.]  INTERVENTION.  [CHAP.  III. 

policy  of  peace  even  if  it  canDot  have  the  great  aid  which  the  co-opera- 
tion of  Mexico  would  assure ;  and  it  will  hope,  at  no  distant  day,  to 
see  such  concord  and  co-operation  between  all  the  nations  of  America 
as  will  render  war  impossible." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Morgan,  Nov.  28,  1881;  MSS.  Inst.,  Mex.  ;  For. 
Eel.,  1881. 

As  to  mediation  in  wars  in  which  Mexico  was  a  belligerent,  see  supra,  §  49. 

As  to  recognition  of  changes  of  Government  in  Mexico,  see  infra,  §  70. 

As  to  a  temporary  protectorate  by  the  United  States  over  the  northern  por- 
tions of  Chihuahua  and  Sonora,  see  President  Buchanan's  message  of  1858, 
<luoted  supra,  $  50e. 

As  to  claims  against  Mexico,  see  infra,  S  2'23. 

The  following  references  to  documents  relative  to  Mexico  are  taken  from  the  list  of 

papers  concerning  foreign  relations  attached  to  the  register  of  the  Department 

of  State  : 

Commercial  intercourse  with.  Not  deemed  advisable  to  commnnicate  correspond- 
ence on  the  subject  of  its  extension.  President's  message.  Jnly  19,1876. 
(H.  Ex.  Doc.  185,  Forty-fourth  Congress,  first  session.) 

Relations  with.  Historical  review.  Texas  border  troubles  and  extradition  re- 
port. Committee  on  Foreign  Affairs.  April  25, 1«78.  (H.  Rep.  701,  Forty- 
fifth  Congress,  second  session.) 

Resolutions  touching  the  relations  with.  May  8,1878.  (.S.  Mis.  Doc.  63,  Forty - 
fifth  Congress,  second  session.) 

Commercial  relations  with.  President's  message.  .January  7, 1879.  (H.  Ex.  Doc. 
15,  Forty-fifth  Congress,  third  session.) 

Commercial  treaty  with.  Report  favoring  the  negotiation  of  such  treaties.  Feb- 
ruary 18,1879.      (H.  Rep.  108,  Forty-fifth  Congress,  third  session.) 

Railroads  in.  Concessions  granted  by  Mexico  for.  President's  message.  Feb- 
ruary 28, 1879.     (S.  Ex.  Doc.  73,  Forty-fifth  Congress,  third  session.) 

Austin-Topolovampo  Railroad  survey  across  Mexico.  President's  message.  Jnlj' 
1,1879  (S.  Ex.  Doc.  38,  Forty-sixth  Congress,  first  session),  stating  that  the 
Department  of  State  has  no  information. 

I'lotection  of  the  Rio  Grande  frontier.  Report  of  Committee  on  Military  Affairs 
favoring  the  erection  of  suitable  posts  on  the  frontier  for  that  purpose.  De- 
cember 9,  1879.     (S.  Rep.  40,  Forty-sixth  Congress,  second  session.) 

Protection  of  the  Rio  Grande  frontier.  Report  of  Committee  on  Military  Alfairs 
favoring  the  erection  of  suitable  posts  on  the  frontier  for  that  purpose.  Jan- 
uary 14, 1880.     (H.  Rep.  68,  Forty-sixth  Congress,  second  session.) 

Seizure  and  detention  of  the  Montana  by  the  customs  authorities  at  Mazatlan. 
Claim  of  Max  Bromberger.  President's  message.  February  27,1880.  (8. 
Ex.  Doc.  96,  Forty-sixth  Congress,  second  session.) 

Amendment  to  the  resolution  thanking  Mexican  Government  and  people  for  cour- 
tesies extended  to  American  merchants  who  recently  visited  that  country. 
April  8,1880.     (H.  Rep.  1015,  Forty-sixth  Congress,  second  session.)    p.  1. 

Resolution  asking  whether  the  United  States  have  objected  to  Mexico  bringing 
suit  in  United  States  courts  rs.  American  citizens.  February  8,  1881.  (S.  Mis. 
Doc.  .33,  Forty-sixth  Congress, third  session.) 

Proposed  reciprocity  treaty  with.  February  6,  1882.  (S.  Mis.  Doc.  45.  Forty- 
seventh  Congress,  first  session.) 

Relations  between  Guatemala  and  the  United  States — the  boundary  question. 
President's  message.  February  17,  1882.  (S.  Ex.  Doc.  156,  Forty-seventh 
Congress,  first  session.) 

338 


CHAP.  III.]  PERU.  [$  59. 

Couiiuercial  treaty  with.  President's raeseage  retransmittiugthesiimc,  asaiuended 
by  insertion  of  tlio  word  ''steel"  in  item  (.%)  (iH  of  the  list  appended  to  article 
2.  February  6,  iy8:i.  (S.  Ex.  Doc.  75,  Forty-seventh  Congress,  second  ses- 
sion.) Report  reconiniendiug  that  it  be  carried  into  operation.  With  map. 
June  17, 18fc'4.      (H.  Rep.  1848,  Forty-eighlh  Congress,  first  session.) 

Amendment  to  pending  treaty  asi\ed.  Memorial  of  Trinidad  and  San  Jos6  Silver 
MiniTig  Company.  January  IG,  1883.  (S.  Mis.  Doc.  2:',,  Forty-seventh  Con- 
gress, second  session.) 

Trade  between  tlie  United  States  and,  and  trafiic  over  railroads  connecting  the 
two  countries.  Letter  from  the  Secretary  of  the  Treasury.  With  map.  Feb- 
ruary 8,  1884.     (H.  Ex.  Doc.  86,  Forty-eighth  Congress,  first  session.) 

Boundary  betweeu  Guatemala  and.  President's  message,  transmitting  report  of 
the  Secretary  of  State.  May  6,  1884.  (H.  Ex.  Doc.  154,  Forty-eighth  Con- 
gress, first  session.) 

Boundary  line  between  the  United  States  and.  President's  message,  transmitting 
letter  from  the  Secretary  of  State  recommending  an  appropiiatlon  for  relo- 
cating monuments  marking.  May  14, 1884.  (II.  Ex.  Doc.  158,  Forty-eighth 
Congress,  first  session.) 

Bonndary  line  between  the  United  States  and.  Report  of  Lieut.  Thomas  W. 
Symons  concerning  a  preliminary  reconnoissance  of.  May  26, 1884.  (S. 
Mis.  Doc.  96,  Forty-eighth  Congress,  first  session.) 

Latest  law  of,  creating  or  modifying  the  Zona  Libre.  President's  message  trans- 
mitting report  of  the  Secretary  of  State.  June  12,  1884.  (S.  Ex.  Doc.  185, 
Forty-eighth  Congress,  first  session.) 


(2)  Peru. 
§59. 

"  The  deplorable  couditiou  of  Peru,  the  disorganization  of  its  Gov- 
ernment, and  the  absence  of  precise  and  trustworthy  information  as 
to  the  state  of  affairs  now  existing  in  that  unhappy  country,  render  it 
impossible  to  give  you  instructions  as  full  and  definite  as  I  would 
desire. 

"  Judging  from  the  most  recent  dispatches  from  our  ministers,  you 
will  probably  find  on  the  part  of  the  Chilian  authorities  in  possession 
of  Peru  a  willingness  to  facilitate  the  establishment  of  the  provisional 
Government  which  has  been  attempted  by  Seiior  Calderon.  If  so,  you 
will  do  all  you  properly  can  to  encourage  the  Peruvians  to  accept  any 
reasonable  conditions  and  limitations  with  which  this  concession  may 
be  accompanied.  It  is  vitally  important  to  Peru  that  she  be  allowed 
to  resume  the  functions  of  a  niJtive  and  orderly  Government,  both  for 
the  purposes  of  internal  administration  and  the  negotiation  of  peace. 
To  obtain  this  end  it  would  be  far  better  to  accept  conditions  which 
may  be  hard  and  unwelcome  than  by  demanding  too  much  to  force  the 
continuance  of  the  military  control  of  Chili,  It  is  hoped  that  you  will 
be  able,  in  your  necessary  association  with  the  Chilian  authorities,  to 
impress  upon  them  that  the  more  liberal  and  considerate  their  policy, 

339 


§  59.]  INTERVENTION.  [CHAP.  III. 

the  surer  it  will  be  to  obtaiu  a  lastiug  and  satisfactoi  >  settlement.  The 
Peruvians  cannot  but  be  aware  of  the  sympathy  and  interest  of  the 
people  and  Government  of  the  United  States,  and  will,  1  feel  confident, 
be  prepared  to  give  to  your  representations  the  consideration  to  which 
the  friendly  anxiety  of  this  Government  entitles  them. 

"The  United  States  cannot  refuse  to  recognize  the  rights  which  the 
Chilian  Government  has  acquired  by  the  successes  of  the  war,  and  it 
may  be  that  a  cession  of  territory  will  be  the  necessary  price  to  be  paid 
for  peace.  It  would  seem  to  be  injudicious  for  Peru  to  declare  that 
under  no  circumstances  could  the  loss  of  territory  be  accepted  as  the 
result  of  negotiation.  The  great  objects  of  the  provisional  authorities 
of  Peru  would  seem  to  be  to  secure  the  establishment  of  a  constitu- 
tional Government,  and  next  to  succeed  in  the  opening  of  negotiations 
for  peace  without  the  declaration  of  preliminary  conditions  as  an  ulti- 
matum on  either  side.  It  will  be  difBcult,  perhaps,  to  obtain  this  from 
Chili ;  but  as  the  Chilian  Government  has  distinctly  repudiated  the 
idea  that  this  was  a  war  of  conquest,  the  Government  of  Peru  may 
fairly  claim  the  opportunity  to  make  propositions  of  indemnity  and 
guarantee  before  submitting  to  a  cession  of  territory.  As  far  as  the 
influence  of  the  United  States  will  go  in  Chili,  it  will  be  exerted  to  in- 
duce the  Chilian  Government  to  consent  that  the  question  of  the  ces- 
sion of  territory  should  be  the  subject  of  negotiation  and  not  the  con- 
dition precedent  upon  which  alone  negotiation  shall  commence.  If  you 
can  aid  the  Government  of  Peru  in  securing  such  a  result,  you  will 
have  rendered  the  service  which  seems  most  pressing.  Whether  it  is 
in  the  power  of  the  Peruvian  Government  to  make  any  arrangements 
at  home  or  abroad,  singly  or  with  the  assistance  of  friendly  powers, 
which  will  furnish  the  necessary  indemnity  or  supply  the  required  guar- 
antee, you  will  be  better  able  to  advise  me  after  you  have  reached  your 
post. 

'•As  you  are  aware,  more  than  one  proposition  has  been  submitted  to 
the  consideration  of  this  Government  looking  to  a  friendly  intervention 
by  which  Peru  might  be  enabled  to  meet  the  conditions  which  would 
probably  be  imposed.  Circumstances  do  not  seem  at  present  opportune 
for  such  action  ;  but  if,  upon  full  knowledge  of  the  condition  of  Peru, 
you  can  inform  this  Government  that  Peru  can  devise  and  carry  into 
practical  effect  a  plan  by  which  all  the  reasonable  conditions  of  Chili 
can  be  met  without  sacrificing  the  integrity  of  Peruvian  territory,  the 
Government  of  the  United  States  would  be  willing  to  offer  its  good  of- 
fices toward  the  execution  of  such  a  project. 

"As  a  strictly  confidential  communication,  I  inclose  you  a  copy  of 
instructions  sent  this  day  to  the  United  States  minister  at  Santiago. 
You  will  thus  be  advised  of  the  position  which  this  Government  as- 
sumes toward  all  the  parties  to  this  deplorable  conflict.  It  is  the  de- 
sire of  the  United  States  to  act  in  a  spirit  of  the  sincerest  friendship 
340 


CHAP.  III.]  PERU.  [§  59. 

to  the  three  Eepublics,  and  to  use  its  iDfluence  solely  in  the  interest  of 
an  honorable  and  lasting  peace." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Hurlbut,  June  15, 1881;  MSS.  Inst.,  Peru ;  For. 
Rel.,  1881. 

"  Your  dispatches  to  No.  23,  inclusive,  have  been  received,  and  I  learn 
with  regret  that  a  construction  has  been  put  upon  your  language  and 
conduct  indicating  a  ])olicy  of  active  intervention  on  the  part  of  this 
Government,  beyond  the  scope  of  your  instructions.  As  those  instruc- 
tions were  clear  and  explicit,  and  as  this  Department  is  in  the  posses- 
sion of  no  information  which  would  seem  to  require  the  withdrawal  of 
the  confidence  reposed  in  you,  I  must  consider  this  interpretation  of 
your  words  and  acts  as  the  result  of  some  strange  and  perhaps  preju- 
diced misconception. 

"  My  only  material  for  forming  an  opinion  consists  of  your  memoran- 
dum to  Admiral  Lynch,  your  letter  to  Senor  Garcia,  the  secretary  of 
General  Pi^rola,  and  the  convention  with  President  Calderon,  ceding 
a  naval  station  to  the  United  States.  I  would  have  i)referred  that  you 
should  hold  no  communication  with  Admiral  Lynch  on  questions  of  a 
diplomatic  character.  He  was  present  as  a  military  commander  of 
Chilian  forces,  and  you  were  accredited  to  Peru.  Nor  do  I  conceive 
that  Admiral  Lynch,  as  the  commander  of  the  Chilian  army  of  occupa- 
tion, had  any  right  to  ask  or  receive  any  formal  assurance  from  you  as 
to  the  opinions  of  your  Government.  The  United  States  was  repre- 
sented in  Chili  by  a  properly  accredited  minister,  and  from  his  own 
Government  the  admiral  could  and  ought  to  have  received  any  informa- 
tion which  it  was  important  for  him  to  have.  It  was  to  be  expected, 
and  even  desired,  that  frank  and  friendly  relations  should  exist  between 
you,  but  I  cannot  consider  such  confidential  communication  as  justify- 
ing a  formal  appeal  to  your  colleague  in  Chili,  for  the  correction  or  crit- 
icism of  your  conduct.  If  there  was  anything  in  your  proceedings  in 
Peru  to  which  the  Government  of  Chili  could  properly  take  exception, 
a  direct  representation  to  this  Government,  through  the  Chilian  minis- 
ter here,  was  due,  both  to  the  Government  and  to  yourself. 

''  Having  said  this,  I  must  add  that  the  language  of  the  memorandum 
was  capable  of  not  unnatural  construction.  While  you  said  nothing 
that  may  not  fairly  be  considered  warranted  by  your  instructions,  you 
omitted  to  say  with  equal  emphasis  some  things  which  your  instruc- 
tions supplied,  and  which  would  perhaps  have  relieved  the  sensitive 
apprehensions  of  the  Chilian  authorities.  For,  while  the  United  States 
would  unquestionably  "regard  with  disfavor"  the  imperious  annexa- 
tion of  Peruvian  territory  as  the  right  of  conquest,  you  were  distinctly 
informed  that  this  Government  could  not  refuse  to  recognize  that  such 
annexation  might  become  a  necessary  condition  in  a  final  treaty  of 
peace.  And  the  main  purpose  of  your  effort  was  expected  to  be,  not 
so  much  a  protest'  against  any  possible  annexation,  as  an  attempt  by 

341 


§  59.]  INTERVENTION.  [CHAP.  III. 

friendly  but  unofficial  communications  with  the  Chilian  authorities 
(with  whom  you  were  daily  associated),  to  induce  themlto  support  the 
]K)ii<'y  of  ftiviiif;-  to  Peru,  without  the  imi)osition  of  harsh  and  absolute 
conditions  precedent,  the  opportunity  to  show  that  the  rights  and  in 
terests  of  Chili  could  be  satisfied  without  such  annexation.  There  is 
enonnjh  in  your  memorandum,  if  carefully  considered,  to  indicate  this 
purpose,  and  I  only  regret  that  you  did  not  state  it  with  a  distinctness, 
and  if  necessary  with  a  repetition,  which  would  have  made  impossible 
anything  but  the  most  willful  misconception. 

"As  at  present  advised  I  miist  express  disapproval  of  your  letter  to 
Senor  Garcia,  the  secretary  of  General  Pierola.  I  think  that  your 
proper  course  in  reference  to  Garcia's  communication  would  have  been 
either  entirely  to  ignore  it  as  claiming  an  official  character  which  you 
could  not  recognize,  or,  if  you  deemed  that  courtesy  required  a  reply, 
to  state  that  you  were  accredited  to  the  Calderon  government,  and 
could,  therefore,  know  no  other,  and  that  any  communication  which 
General  Pierola  thought  it  his  duty  or  interest  to  make  must  be  made 
directly  to  the  Government  at  Washington.  You  had  no  responsibility 
in  the  matter,  and  it  was  injudicious  to  assume  any.  The  recognition 
of  the  Calderon  government  had  been  duly  considered  and  decided  by 
your  own  Government,  and  you  were  neither  instructed  nor  expected 
to  furnish  General  Pierola  or  the  Peruvian  public  with  the  reasons  for 
that  action.  The  following  language  in  your  letter  to  Senor  Garcia 
might  well  be  misunderstood: 

"  'Chili  desires,  and  asks  for  Tarapac^,  and  will  recognize  the  Govern- 
ment which  agrees  to  its  cession.  The  Calderon  government  will  not 
cede  it.  It  remains  to  be  seen  whether  that  of  Pierola  will  prove  more 
pliable.'" 

"  It  might  easily  be  supposed,  by  an  excited  public  opinion  on  either 
side,  that  such  language  was  intended  to  imply  that  the  Government 
of  the  United  States  had  recognized  the  government  of  Calderon  be- 
cause of  its  resolution  not  to  cede  Peruvian  territory.  No  such  motive 
has  ever  been  declared  by  this  Government.  The  government  of  Cald- 
eron was  recognized  because  we  believed  it  to  the  interest  of  both  Chili 
and  Peru  that  some  respectable  authority  should  be  established  which 
could  restore  internal  order,  and  initiate  responsible  negotiations  for 
peace.  We  desired  that  the  Peruvian  Government  should  have  a  fair 
opportunity  to  obtain  the  best  terms  it  could,  and  hoped  that  it  would 
be  able  to  satisfy  the  just  demands  of  Chili  without  the  painful  sacri- 
lice  of  the  national  territory.  But  we  did  not  make,  and  never  intended 
to  make,  any  special  result  of  the  peace  negotiations  the  basis  of  our 
recognition  of  the  Calderon  government.  What  was  best,  and  what 
was  possible  for  Peru  to  do,  we  are  anxious  to  the  extent  of  our  power 
to  aid  her  in  doing,  by  the  use  of  whatever  influence  or  consideration 
we  enjoyed  with  Chili.  Further  than  that,  the  Government  of  the 
United  States,  as  yet,  expressed  neither  opinion  nor  intention. 
342 


CHAP.  III.]  PERU.  [§69. 

''I  must  also  express  tlie  diss;itisfaction  of  the  Department  at  your 
telegram  to  the  minister  of  the  United  States  near  the  Argeutiue  Confed- 
eration, suggesting  that  a  minister  be  sent  by  that  Government  to  Peru. 

"  This  would  have  been  clearly  without  the  sphere  of  your  proper  oflS- 
cial  action  at  any  time,  but  as  there  then  existed  a  serious  difference 
between  Chili  and  the  Argentine  Confederation,  you  might  naturally 
have  anticipated  that  such  a  recommendation  would  be  considered  by 
Chili  as  an  effort  to  effect  a  political  combination  h gainst  her.  The 
United  States  was  not  in  search  of  alliances  to  support  a  hostile  dem- 
onstration against  Chili,  and  sucl|^ta^uxiety  might  well  be  deemed 
inconsistent  with  the  i^rofessions  o^i^^bartial  mediation. 

"As  to  the  convention  with  regard  to^mlltel  station  in  the  bay  ot 
Chimbote,  I  am  of  the  opinion  that,  although  it  is  a  desirable  arrange- 
ment, the  time  is  not  opportune.  I  would  be  very  unwilling  to  ask 
such  a  concession  under  circumstances  which  would  almost  seem  to 
impose  upon  Peru  the  necessity  of  compliance  with  our  request,  and  I 
have  no  doubt  that  whenever  Peru  is  relieved  from  present  embarrass- 
ments she  would  cheerfully  grant  any  facilities  which  our  naval  or 
commercial  interests  might  require,  ^or  in  the  present  excited  condi- 
tion of  public  opinion  in  Chili  would  I  be  willing  to  afford  to  evil-dis- 
posed persons  the  opportunity  to  intimate  that  the  United  States  con- 
templated the  establishment  of  a  naval  rendezvous  in  the  neighborhood 
of  either  Peru  or  Chili.  The  very  natural  and  innocent  convenience 
which  we  require  might  be  misunderstood  or  misrepresented,  and  as 
our  sole  purpose  is  to  be  allowed,  in  a  spirit  of  the  most  impartial  friend- 
ship, to  act  as  mediator  between  these  two  powers,  I  would  prefer  at 
present  to  ask  no  favors  of  the  one  and  to  excite  no  possible  apprehen- 
sion in  the  other. 

"  Having  thus  stated  with  frankness  the  impression  made  upon  the 
Department  by  such  information  as  you  have  furnished  it,  it  becomes 
my  duty  to  add  that  this  Government  is  unable  to  understand  the  abo- 
lition of  the  Calderon  government  and  the  arrest  of  President  Calderon 
himself  by  the  Chilian  authorities,  or  I  sui)pose  I  ought  to  say  by  the 
Chilian  Government,  as  the  secretarj'  for  foreign  affairs  of  that  Gov- 
ernment has  in  a  formal  communication  to  Mr.  Kilpa trick  declared  that 
the  Calderon  government  "was  at  an  end."  As  we  recognized  that 
government  in  supposed  conformity  with  the  wishes  of  Chili,  and  as  no 
reason  for  its  destruction  has  been  given  us,  you  will  still  consider 
yourself  accredited  to  it,  if  any  legitimate  representative  exists  in  the 
place  of  President  Calderon.  If  none  such  exists,  you  will  remain  in 
Lima  until  you  receive  further  instructions,  confining  your  communica- 
tions with  the  Chilian  authorities  to  such  limits  as  your  personal  con- 
venience and  the  maintenance  of  the  rights  and  privileges  of  your  lega- 
tion may  require. 

"  The  complicated  condition  of  affairs  resulting  from  the  action  of  the 
Chilian  Govermnent,  the  time  required  for  communication  between  the 

343 


§  59.]  INTERVENTION.  [CHAP.  III. 

legations  in  Chili  and  Peru  and  this  Department,  and  the  unfortunate 
notoriety  which  the  serious  differences  between  yourself  and  your  col- 
league in  Chili  have  attracted  have,  in  the  opinion  of  the  President, 
imposed  upon  him  the  necessity  of  a  special  mission.  This  mission  will 
be  charged  with  the  duty  of  expressing  the  views  of  the  President  upon 
the  grave  condition  of  afiairs  which  your  dispatches  describe,  and,  if 
possible,  with  due  consideration  of  the  rights,  interests,  and  suscepti- 
bilities of  both  nations  to  promote  a  settlement  which  shall  restore  to 
the  suffering  peojde  of  Peru  the  benefits  of  a  well  ordered  Government, 
deliver  both  countries  from  the  miseries  and  burdens  of  a  protracted 
war,  and  place  their  future  relations  upon  a  foundation  that  will  prove 
stable,  because  just  and  honorable." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Hurlbut,  Nov.  22,   1881;  MSS.  lawt.,  Peru; 
For.  Rel.,  1881. 

"  The  United  States,  with  which  Peru  has  for  many  years  maintained 
the  most  cordial  relations,  has  the  right  to  feel  and  express  a  deep  in- 
terest in  its  distressed  condition,  and  while,  with  equal  friendliness  to 
Chili,  we  will  not  interpose  to  deprive  her  of  the  fair  advantages  of 
military  success,  nor  put  any  obstacle  to  the  attainment  of  future  se- 
curity, we  cannot  regard  with  unconcern  the  destruction  of  Peruvian 
nationality.  If  our  good  offices  are  rejected,  and  this  policy  of  the  ob- 
sorptiou  of  an  independent  state  be  persisted  in,  this  Government  will 
consider  itself  discharged  from  any  further  obligation  to  be  influenced 
in  its  action  by  the  position  which  Chili  has  assumed,  and  would  hold 
itself  free  to  appeal  to  the  other  Republics  of  this  continent  to  join  in 
an  effort  to  avert  consequences  which  cannot  be  confined  to  Chili  and 
Peru,  but  which  threaten  with  extremest  danger  the  political  institu- 
tions, the  peaceful  progress,  and  the  liberal  civilization  of  all  America.'? 
Mr.  Blaine,  Sec.  of  State,  to  Mr.  Trescot,  Dec.  1,  18H1 ;  MSS.  Inst.,  Chili. 

"  Were  the  United  States  to  assume  an  attitude  of  dictation  toward 
the  South  American  Republics,  even  for  the  purpose  of  preventing  war, 
the  greatest  of  evils,  or  to  preserve  the  autonomy  of  nations,  it  must 
be  prepared  by  Army  and  ]Sravy  to  enforce  its  mandate,  and,  to  this 
end,  tax  our  people  for  the  exclusive  benefit  of  foreign  nations. 

"  The  President's  policy  with  the  South  American  Republics  and  other 
foreign  nations  is  that  exju-essed  in  the  immortal  address  of  Washing- 
ton, with  which  you  are  <'ntirely  familiar.  What  the  President  does 
seek  to  do  is  to  extend  the  kindly  offices  of  the  United  States  impartially 
to  both  Peru  and  Chili,  whose  hostile  attitude  to  each  other  he  seriously 
laments;  and  he  considers  himself  fortunate  in  having  one  so  compe- 
tent as  yourself  to  bring  the  power  of  reason  and  persuasion  to  bear  in 
seeking  the  termination  of  the  unhappy  controversy.  And  you  will 
consider  as  revoked  that  ])ortion  of  your  original  instruction  which  di- 
rects you,  on  the  contingency  therein  stated,  as  follows: 

<'' You  will  say  to  the  Chilian  Goverumeut  that  the  President  cou- 
344 


CHAP.  III.]  PERU.  [§  59. 

siders  such  a  proceeding  as  an  intentional  and  unwarranted  offense,  and 
that  you  will  comomnicate  such  an  avowal  to  the  Government  of  the 
United  States,  with  the  assurance  that  it  will  be  regarded  by  the  Gov- 
ernment as  an  act  of  such  unfriendly  import  as  to  require  the  immediate 
suspension  of  all  diplomatic  intercourse.  You  will  inform  me  imme- 
diately^ of  the  happening  of  such  a  contingency,  and  instructions  will 
be  sent  to  you.' 

"  Believing  that  a  prolific  cause  of  contention  between  nations  is  an 
irritability  which  is  too  readily  offended,  the  President  prefers  that  he 
shall  himself  determine,  after  report  has  been  made  to  him,  whether 
there  is  or  is  not  cause  for  offense." 

Mr.  Frelinghuyseu,  Sec.  of  State,  toMr.  Trescot,  Jan.  9,  1882;  MSS.  Inst.,  Chili. 

"  On  the  other  hand  he  remains  convinced  that  the  United  States  has 
no  right  which  is  conferred  either  by  treaty  stipulations  or  by  public 
law  to  impose  upon  the  belligerents,  unasked,  its  views  of  a  just  settle- 
ment, and  it  has  no  interests  at  stake  commensurate  with  the  evils  that 
might  follow  an  interference,  which  would  authorize  it  to  interpose  be- 
tween these  parties,  further  than  warranted  by  treaties,  by  public  law, 
or  by  the  voluntary  acts  of  both  parties." 

Mr,  Frelinghnysen,  Sec.  of  State,  to  Mr.  Tiescot,  Feb.  24,  1882;  MSS.  Inst., 
Chili. 

"  The  study  which  you  have  made  of  the  correspondence  between 
this  Department  and  the  legations  of  the  United  States  in  Chili,  Peru, 
and  Bolivia  renders  unuecessar3^  a  detailed  statement  of  the  protracted 
negotiations  seeking  to  establish  peace  between  those  Republics. 

"The  general  policy  of  the  United  States  in  regard  to  the  conflict  be- 
tween these  states  is  set  forth  in  instructions  No.  2,  of  December  1, 
1881,  to  Mr.  Trescot;  No.  2,  of  March  18,  1882,  and  No.  41,  of  March 
23,  1883,  to  Mr.  Logan,  and  No.  5,  of  June  26,  1882,  to  Mr.  Partridge, 
and  also  in  the  message  of  the  President  to  Congress,  transmitted  to 
that  body  in  December  last. 

"The  representatives  of  this  Government,  as  you  have  seen  from  these 
instructions,  were  directed  harmoniously  to  join  in  a  courteous  and 
friendly  effort  to  aid  the  belligerent  powers  in  reaching  an  agreement 
for  peace,  which,  while  securing  to  Chili  the  legitimate  results  of  suc- 
cess, should  at  the  same  time  not  be  unduly  severe  upon  Peru  and 
Bolivia. 

"  Mr.  Logan,  who  was  accredited  to  Chili,  has  for  some  nine  months 
energetically  sought  for  a  satisfactory  basis  of  settlement,  but  thus  far 
without  that  success  which  it  was  hoped  before  this  time  might  have 
been  attained.  Nevertheless  it  is  believed  that  his  efforts  have  aided 
in  bringing  the  parties  nearer  to  an  agreement. 

"Mr.  Logan  was  instructed  in  my  No.  41,  of  March  23,  1883,  that  he 
should  suggest  the  following  bases  for  a  treaty  of  peace  to  the  Chilian 
Government,  viz :  The  cession  to  Chili  of  the  Peruvian  territory  of  Tara 

345 


§  5 9. J  INTERVENTION.  [CHAP.  III. 

paca,  aud  the  submission  to  impartial  arbitration  of  the  question  whether 
any  additional  territory  should  be  ceded,  and,  if  so,  how  much  and  on 
what  terms.  When  this  instruction  reached  Santiago  another  phase  of 
this  question  had  presented  itself  in  the  substantial  agreement  by  Chili 
with  General  Jglesias,  who  had  been  put  forward  as  the  representative 
of  Peru.  The  full  text  of  this  agreement  has  not  been  received  at  the 
Department,  but  it  is  understood  that  in  substance  it  concedes  to  Chili 
the  i)rovince  of  Tarapaca,  with  the  occupation  for  ten  years  of  the  prov- 
ince of  Tacna  and  Arica,  at  the  end  of  which  time  a  plebiscite  is  to  be 
taken  to  decide  to  which  of  the  parties  the  provinces  shall  thencefor- 
ward belong,  the  successful  power  to  pay  to  the  other  the  sum  of  ten 
millions  of  dollars.  The  other  provisions,  as  to  guano  and  the  Peruvian 
debt,  are  not  yet  definitely  known. 

"  It  will  be  seen  that  these  terms  are  more  severe  upon  Peru  than 
those  which  Chili  had  before  been  willing  to  accord.  It  was  after  Seuor 
Calderon  declined  the  terms  of  settlement  offered  by  Chili  through  Mr. 
Logan's  mediation  that  Chili  turned  to  General  Iglesias,  and,  through 
a  representative  sent  by  him,  submitted  the  terms  of  settlement  here- 
inbefore stated,  and  which  terms  have  by  this  time  received  the  signa- 
ture of  General  Iglesias. 

"It  is  not  the  province  of  this  Government  to  adjudge  who  is  or  who 
is  not  dejure  the  representative  of  the  executive  or  sovereign  power  of 
:iny  nation.  International  intercourse  imposes  upon  it  often  the  neces- 
sity of  recognizing  some  one  as  at  least  de  facto  such  representative. 

'•I'pon  the  flight  of  Pierola  the  Government  of  Seiior  Calderon  was 
reeu:4nized  by  the  United  States  as  the  de  facto  Government  of  Peru, 
springing  up  necessarily  from  the  state  of  affairs  then  existing,  and 
having  apparently  the  support  of  the  majority  of  the  citizens  of  Peru. 
Soon  after  its  recognition  Senor  Calderon  was  transported  to  Chili  as 
a  prisoner,  and  since  that  time  has  not  been  in  the  territory  of  his  native 
country.  Seiior  Montero,  meantime  the  vice  president,  has  at  various 
points  in  the  country,  and  now  for  some  time  at  Arequipa,  represented 
in  Peru  the  authority  of  that  Government  of  which  he  is  the  second  in 
rank. 

"It  is  now  claimed  that  the  Government  of  Calderon-Montero  has  lost 
the  attributes  of  a  de  facto  government,  and  it  is  urged  that,  not  having 
the  support  of  the  people,  it  is  no  longer  entitled  to  recognition.  The 
information  furnished  this  Department  on  the  subject,  however,  is  most 
conflicting,  and  is  naturally  colored  by  the  sentiments  of  the  different 
observers.  On  the  one  hand  it  is  said  that  General  Iglesias  is  supported 
by  fully  five-sixths  of  the  population  of  Peru,  that  the  provinces  of  the 
north  and  center  ai-e  solidly  united  in  his  aid  and  in  approval  of  his 
l)lan  of  settlement,  while  on  the  other  hand,  we  are  told  that  Calderon 
was  never  so  strong  as  at  present,  that  his  own  moral  influence  and  the 
physical  force  of  his  followers  are  impregnable  in  Arequipa,  and  that 
a  majority  of  his  countrymeu  support  irnd  approve  his  coui'se.  It  is 
346 


CHAP.  III.]  PERU.  [§  59. 

evident  that  no  peace  can  be  made  unless  Peru  is  repY-esented  in  its  ne- 
gotiation by  some  one  having  the  support  of  his  fellow-countrymen  and 
whose  action  will  meet  with  their  approval. 

"In  SeSor  Calderon  this  Government  understood  that  it  recognized 
such  a  ruler.  As  at  present  advised,  it  would  not  hastily  withdraw  or 
transfer  that  recognition.  Should  the  facts  be  as  alleged  by  the  friends 
of  General  Iglesias,  this  Government  will  not,  by  adhering  to  the  recog- 
nition of  Seiior  Calderon,  impetle  the  advance  toward  an  amicable  ad- 
justment of  the  difficulty. 

"  Your  first  and  most  delicate  duty,  therefore,  will  be,  by  rendering 
yourself  familiar  with  the  condition,  politics,  and  affairs  of  Peru,  and 
consulting,  if  practicable,  with  your  colleagues  the  ministers  to  Chili 
and  Bolivia,  to  report  fully  to  this  Department  whom  it  is  wise  and 
proper  that  this  Government,  having  in  view  the  peace  and  prosperity 
of  the  three  contending  Republics,  should  recognize  as  the  executive 
representative  of  the  sovereignty  of  Peru. 

"  The  confidence  which  this  Department  places  in  your  discretion  and 
good  judgment  and  that  of  your  colleagues  will  render  your  report  on 
this  delicate  question  influential  with  this  Government  in  its  determi- 
nation ;  and  should  the  opinion  of  the  ministers  to  Chili,  Peru,  and 
Bolivia  be  in  harmony,  such  opinion  would  be  well-nigh  conclusive. 

"As  soon  as  you  reach  a  decision  satisfactory  to  yourself  you  will  re- 
port the  result  without  delay  to  this  Government,  using,  if  necessary, 
the  telegraph  freely  for  this  purpose;  and  if  in  your  judgment  it  becomes 
important,  you  may,  without  in  any  manner  committing  yourself  as  to 
your  final  conclusions,  report  by  telegraph  the  progress  of  your  inves- 
tigations and  their  indications. 

"While  greater  stress  has  been  given  in  the  instructions  of  this  De- 
partment to  the  relations  of  Peru  and  Chili,  it  must  not  be  assumed  that 
the  rights  and  wishes  of  Bolivia,  a  sovereign  power  and  a  party  to  the 
contest,  with  rights  equal  to  the  other  contestants,  are  to  be  neglected. 
It  is  not  supposed  that  any  agreement  will  be  made,  nor  in  fact  can 
any  agreement  be  reached,  which  shall  not  receive  the  assent  of  that 
l)ower  in  all  that  concerns  its  interests.  As  this  Government  has  rec- 
ognized the  equal  sovereignty  of  the  three  Kepublics,  and  will  not  de- 
part from  that  position,  of  course  any  agreement,  so  far  as  it  affects  the 
rights  of  Bolivia,  must  receive  the  consent  of  that  power. 

"  Until  Chili  and  Peru  had  reached  a  point  where  a  fair  prospect  of 
agreement  was  seen,  it  seemed  unnecessary  to  negotiate  at  La  Paz,  par- 
ticularly as  Seiior  Calderon,  it  was  properly  assumed,  would  not  act 
against  the  interests  of  his  ally.  For  these  reasons  the  tentative  dis- 
cussions were  carried  on  at  Santiago. 

"  I  simply  add  that  it  is  not  for  this  Government  to  dictate  to  sover- 
eign belligerent  powers  the  terms  of  peace  to  be  accepted  by  them,  nor 
is  it  the  right  or  duty  of  the  United  States  in  the  premises  to  do  more 
than  to  aid  by  their  unprejudiced  counsels,  their  freindly  mediation,  and 

347 


§  59.]  INTERVENTION.  [CHAP.  III. 

their  moral  support  the  obtainment  of  peace — the  much -desired  end. 
If  sucli  an  end  can  be  reached  iu  a  manner  satisfactory  to  all  parties 
more  speedily  through  negotiations  with  Peruvian  authority  other  than 
that  heretofore  recognized  by  this  Government  as  the  de  facto  ruler  of 
Peru,  this  Government  will  not,  through  any  spirit  of  i)ride  or  i)ique, 
stand  in  the  way  of  the  hoped-for  result." 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Phelps,  July  26,  1883  ;  MSS.  lust.,  Peru  ; 
For.  Eel.,  188:5. 

"  I  transmit  herewith  for  your  information  a  copy  of  a  dispatch  from 
Mr.  Logan,  communicating  the  test  of  the  protocol  signed  between 
General  Iglesias  and  the  Chilian  general,  Norva,  leading  to  a  definitive 
treaty  of  jieace, 

"  An  examination  of  the  terms  of  the  protocol  shows  that  the  foreign 
debt  of  Peru  is  guaranteed  only  to  a  limited  extent  by  a  portion  only  of 
the  guano  product,  the  overplus,  as  well  as  all  future  discoveries  of 
guano,  to  go  to  Chili. 

"  This  Government  does  not  undertake  to  speak  for  any  other  than 
the  lawful  interests  of  American  citizens  which  may  be  involved  in  this 
settlement,  but  as  to  them  it  must  be  frankly  declared  and  unmistak- 
ably understood  that  the  United  States  could  not  look  with  favor  upon 
any  eventual  settlement  w^hich  may  disregard  such  interests. 

"It  may  be  difficult  for  you,  in  concert  with  your  colleagues,  to  advo- 
cate any  determinate  solution  of  the  embarrassing  questions  relating  to 
the  other  foreign  debt  of  Peru,  since  this  Government  cannot  under- 
take to  advocate  the  interests  of  any  class  of  bondholders  or  other 
legitimate  creditors  of  Peru  without  exercising  a  like  watchful  consid- 
eration for  the  interests  of  all.  It  seems,  however,  to  be  essential  to  a 
just  and  lasting  peace  either  that  Peru  should  be  left  in  a  condition  to 
meet  obligations  toward  other  Governments  which  were  recognizcil 
prior  to  the  war  or  which  may  be  legitimately  established,  or  that  if 
Chili  appropriates  the  natural  resources  of  Peru  as  compensation  for  the 
expenses  of  the  war  she  should  recognize  the  obligations  which  rest 
upon  those  resources,  and  take  the  property  with  a  fair  determination 
to  meet  all  just  incumbrances  which  rest  upon  it. 

"  The  President  would  see  with  regret  any  insistance  by  Chili  upon  a 
policy  which  would  impose  upon  Peru  heavier  burdens  than  she  has 
been  disposed  to  impose  during  the  past  negotiations. 

"Better  terms,  if  oflered,  would  be  api)reciated  by  him  as  a  friendly 
recognition  of  the  earnestness  whi(;li  this  Government  has  shown  in 
endeavoring  to  bring  about  an  honorable  and  equitable  end  to  the 
painful  strife." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Phelps,  Aug.  2o,  1883;  MSS.  Inst., 
Peru;  For.  Rcl.,  1883. 

"Your  several  dispatches,  so  far  as  received  to  date,  reporting  the 
military  and  political  situatiou  iu  Peru,  have  been  considered  with  the 
348 


CHAP.  III.]  PERU.  [§  59. 

jitteiitioii  deinaiuUHl  by  the  importance  of  the  occurrenceH  you  narrate. 
As  sup[)leinented  by  your  later  telegrams,  they  jihow  the  conclusion  of 
a  treaty  of  peace  between  General  Ij^lesias  and  the  Chilian  plenipoten- 
tiary, on  what  are  understood  here  to  be  bases  substantially  in  accord 
with  the  terms  of  the  protocol  jjreviously  signed  between  General  Igle- 
sias  and  the  representative  of  Chili;  the  evacuation  of  Lima  by  the 
Chilian  forces;  the  installation  there  of  a  form  of  provisional  adminis- 
tration under  the  Presidency  of  General  Iglesias;  and  the  revolt  of  the 
residents  or  garrison  of  Arequipa  against  the  authority  of  Vice-President 
Montero,  who  thereupon  escaped  by  fliglit.  Besides  this,  it  appears 
that  the  first  public  act  of  General  Iglesias  on  assuming  control  of  the 
provisional  Government  thus  established,  was  to  issue  a  convocation 
for  an  assembly  of  delegates,  to  be  chosen  bj^  the  people  of  Peru,  to 
whom  is  to  be  referred  the  question  of  accepting  and  ratifying  the  treaty 
which  has  been  signed,  and  who  are  further  to  decide  the  Presidency 
of  the  Peruvian  Government. 

"  Of  the  terms  of  the  treaty  itself  I  cannot  at  present  speak.  You  are 
already  acquainted  with  the  views  of  this  Government  upon  the  main 
point  involv^ed.  It  remains  to  be  seen  whether  the  people  of  Peru,  in 
the  expression  of  their  national  sovereignty,  are  dis])Osed  to  accei)t  the 
terms  proposed  to  them.  With  this  the  Government  of  the  United 
States  has  no  desire  to  interfere.  It  respects  the  independence  of  Peru 
as  a  commonwealth  entitled  to  settle  its  own  afiairs  in  its  own  way.  It 
recognizes  too  keenly  the  calamities  of  protracted  strife,  or  the  alterna- 
tive calamity  of  prolonged  military  occupation  by  an  enemy's  forces,  to 
seek,  by  anything  it  may  say  or  do,  to  influence  an  adverse  decision  of 
the  popular  representatives  of  Peru.  And  a  due  respect  for  their  sov- 
ereign independence  forbids  the  United  States  from  seeming  to  exert 
any  positive  or  indirect  pressure  upon  these  representatives  to  influence 
their  course. 

"  The  state  of  facts  reported  by  you  makes  it  necessary  to  give  you  in- 
structions respecting  your  relations  with  the  provisional  Government. 
With  the  people  of  Peru  this  country  aims,  as  it  has  always  aimed,  to 
maintain  relations  of  friendship  and  symjiathy.  With  the  particular 
Administration  which  may  for  the  time  assume  to  control  the  aflairs  of 
Peru  we  have  little  direct  concern,  except  so  far  as  our  attitude  towards 
it  shall  express  our  friendliness  to  the  nation  ;  hence  we  have  no  i)ar- 
tiality  for  the  Calderon-Montero  government  or  desire  that  you  should 
manifest  any.  Should  the  assembly  which  is  about  to  convene  be 
elected  under  circumstances  entitling  it  to  represent  the  people  of  Peru 
and  declare  for  General  Iglesias,  this  Government  would  no  doubt  rec- 
ognize him.  This,  however,  it  is  unnecessary  to  say,  as  such  an  an- 
nouncement in  advance  of  the  action  of  the  assembly  might  in  effect 
exert  an  influence  lipon  its  deliberations,  which  we  seek  to  avoid. 

349 


§  59.]  INTERVENTION.  [CHAP.  III. 

"In  the  mean  time,  however,  your  attitude  towards  whatever  Admin- 
istration may  have' actual  control  of  the  public  affairs  of  Peru  should  be 
unconstrained,  althoujifh  informal,  and  of  a  character  to  impress  them 
with  a  sense  of  the  good-will  we  bear  to  the  Peruvian  people." 

Mr.  Frelinghnyseu,  Sec.  of  State,  to  Mr.  Plielps,   Nov.  1.5,  1883;  MSS.  Inst.. 
Peru;  For.  Rel,,  1883. 

"  The  opinion  of  the  United  States  heretofore  has  been,  that  as  the 
foreign  obligations  of  Pern,  incurred  in  good  faith  before  the  war,  rested 
upon  and  were  secured  by  the  products  of  her  guano  deposits,  Chili 
was  under  a  moral  obligation  not  to  aj^propriate  that  security  without 
recognizing  the  lien  existing  thereon.  This  opiuion  was  frankly  made 
known  to  Chili,  and  our  belief  was  expressed  that  no  arrangement  would 
be  made  between  the  two  countries  by  which  the  ability  of  Peru  to  meet 
her  honest  engagements  towards  foreigners  would  be  impaired  by  the 
direct  act  of  Chili.  This  Government  went  so  far  as  to  announce  that  it 
could  not  be  a  party,  as  mediator,  or  directly  lend  its  sanction  to  any 
arrangement  which  should  impair  the  power  of  Peru  to  pay  those  debts." 

Mr.  Freliughuysen,   Sec.  of  State,  to  Mr.   Phelps,    Dec.  29,  1883 ;  MSS.  lust., 
Peru. 

"  Your  energy  in  seeking  to  reach  some  conclusion  is  appreciated, 
but  for  this  Government  to  direct  you  to  tell  Peru  that  it  should  sur- 
render Tarapaca,  Tacna,  and  Arica,  on  receiving  $10,000,000,  would  be 
assuming  to  decide  a  question  between  two  nations  when  we  have  not 
been  requested  to  arbitrate,  and  it  would  be  telling  Chili  it  might  prop- 
erly make  claim  for  the  territory.  Peru's  condition  may  be  so  deplora- 
ble that  it  is  wise  for  her  to  accept  these  terms,  but  Peru  and  not  the 
United  States  as  to  this  must  decide." 

Mr.  Frelinghuyseu,  Sec.  of   State,   to  Mr.   Logan,  Jan.  5,  IBSG;  MSS.  Inst., 
Chili. 

The  following  Congressional  documents,  as  noted  in  the  list  of  papers  concerning 
foreign  relations  attached  to  the  register  of  the  Department  of  State,  may  be  referred 
to  in  this  relation : 

Chilian  and  Peru-Bolivian  war.  Efforts  of  the  United  States  to  bring  about  a 
peace.  President's  message.  January  20,  1881.  (S.  Ex.  Doc.  26,  Forty- 
sixth  Congress,  third  session.) 

Papers  relating  to,  and  attempts  to  bring  about  a  peace,  and  touching  claims  or 
contracts  respecting  either  of  the  belligerent  Go%'eraments  ;  a  diplomatic  his- 
tory of  the  war.  President's  message.  January  26,  1882.  (S.  Ex.  Doc.  79, 
Forty-seventh  Congress,  first  session.)  Eefers  to  the  foregoing  document 
for  the  correspondence.  President's  message.  January  26,  1882.  (H.  Ex. 
Doc.  ()3,  Forty-seventh  Congress,  first  session.) 

Telegram  from  Mr.  Trescot,  setting  forth  the  conditions  of  peace  presented  by 
Chili.  President's  message.  January  27,  1682.  (S.  Ex.  Doc.  79,  part  2, 
Forty-seventh  Congress,  first  session.) 

Farther  correspondence,  not  incorporated  in  H.  Ex.  Doc.  68,  comprising  letters  of 
Messrs.  Shipherd,  Christiancy,  and  Hurlbut.  President's  message.  February 
17,  1882.  (H.  Ex.  Doc.  68,  part  2,  Forty-seventh  Congress,  first  session.) 
350 


CHAP.  III.] 


PERU. 


K69. 


Peace  congress  to  convene  at  Washington  to  agree  on  some  just  metliod  of  settle- 
ment of  all  questions  now  cxistinjj;  or  that  shall  hereafter  arise  between  Chili. 
Peru,  and  Bolivia.  Resolution  favoring  such  congress.  February  20,  l-'-'-J. 
(S.  Mis.  Doc.  .'j;5,  Forty-seventh  Congress,  first  session.) 

Allegt-d  contracts  for  exporting  guano,  investigation  as  to  connection  of  United 
States  officials  with.  February  24,  1882.  (S.  Mis.  Doc.  .')5,  Forty -seventh  Con- 
gress, first  session.) 

Investigation  of  charges  of  official  corruption  in  relation  to  alleged  guano  con- 
tracts. February  28,  1882.  (S.  Mis.  Doc.  57,  Forty-seventh  Congress,  first 
session.) 

The  dismemberment  of  Peru.  March  7,  1882.  (S.  Mis.  Doc.  62,  Fortyseventli 
Congress,  fir.st  session.) 

Transmitting  correspondence  ;  the  lost  papers.  President's  message.  M;irch  1(», 
1882.     (S.  Ex.  Doc.  79,  part  3,  Forty-seventh  Congress,  first  session.) 

Negotiations  for  restoration  of  peace  in  South  America.  President's  message. 
March  28,  1882.     (H.  Ex.  Doc.  142,  Forty-seventh  Congress,  lirst  session. ) 

Transmitting  instructions  of  Secretary  of  State  Frelinghuysen  to  Mr.  Trescot. 
and  other  papers.  President's  message.  March  28,  1882.  (H.  Ex.  Doc.  142. 
Forty-seventh  Congress,  first  session.) 

Answer  of  Secretary  of  State  to  call  for  more  correspondence  in  the  guano  claims, 
referring  to  S.  Ex.  Doc.  79,  Forty-seventh  Congress,  first  session.  President's 
message.    May  26, 1882.  (H.  Ex.  Doc.  68,  Forty-seventh  Congress,  first  session. ) 

Report  of  the  Committee  on  Foreign  Affairs  relative  to  certain  missing  papers 
from  the  files  of  the  Department  of  State,  and  also  relating  to  the  connection 
of  one  or  more  ministers  plenipotentiary  of  the  United  States  with  business 
transactions  in  which  the  intervention  of  the  United  States  was  requested 
between  Chili  and  Peru.  Guano  claims  of  Landreavi  and  Cochet,  Peruvian 
Company,  and  Credit  Industriel.  August  1,  1882.  (H.  Rep.  1790,  Forty- 
seventh  Congress,  first  session.) 

Minority  report.     August  .5,  1882.     (/bit?.,  part  2.) 

Report  of  Wm.  Henry  Trescot  and  Walker  Blaine  on  the  results  of  the  special 
mission  in  South  America.  President's  message.  June  14,  1882.  (S.  Ex, 
Doc.  1881,  Forty-seventh  Congress,  first  session.) 

Joint  eflForts  of  ministers  of  the  United  States,  Great  Britain,  France,  and  Italy  in 
Lima  or  Peru  to  bring  about  peace.     Resolution  requesting  the  President  to 
give  any  information  in  his  possession  concerning  the  same,  and  to  state  if 
the  United  States  minister  has  been  instructed  to  iiivite  or  acce))t  the  nu'dia- 
tion  of  European  powers  in  the  settlement  of  a  purely  American  question. 
February  21,  1883.     (S.  Mis.  Doc.  44,  Forty-seventh  Congress,  second  session.) 
The  following  is  a  list  of  instructions  issuing  from  the  De))artnient  of  State  in  1S70-'81 
in  reference  to  the  war  then  i)ending  between  Peru,  Chili,  and  Bolivia.     These  docu- 
ments are  published  in  a  volume  entitled  ''War  in  South  America  and  attempt  to 
bring  about  a  peace,"  printed  in  the  Government  Printing  Office  in  1882.     The  num- 
bers and  pages  refer  to  this  volume  : 


Mr.  Evaits  to  Mr. 
Pettis  (No.  12). 


18T9. 
June  23 


Privateering  against  Chilian  ])roperty  in 
neutral  vessels :  authorization  of,  by  Bo- 
livia, and  ]»r()]i()sed  fitting  out  of  ])riva- 
teers  in  the  United  States  by  B(tlivian 
agents  ;  instructed  to  infoTiu  Bolivia  that 
treaty  of  18''8  exempts  from  cajitnre  en- 
emy's {iroperty  on  board  neutral  vessels,  I 
and  that  law  of  the  United  States  prohib- 
its fitting  out  within  its  territory  of  ex- 
peditious against  a  country  with  which 
United  States  is  at  peace. 

351 


$59.] 


INTERVENTION. 


fCHAP.  III. 


2     Mr.  Evarts  to  Mr. 
Pettis  (No.   i:{). 


Same  to  same  (No. 
17). 


Mr.  F.  W.  Seward 
to  Mr.  Pettis  (No. 
19). 

Same  to  same  (No. 

21). 

Mr.  Evarts  to  Mr. 
Pettis  (No.  2.')). 


Same  to  Mr.  Adams 

(No.  3). 

Same  to  same  (No. 
10). 

Sa,me  to  same  (No. 
24). 


Mr.  F.  W.  Seward 
to  Mr.  Osborn 
(No  63). 

Mr.  Evarts  to  Mr. 
Osborn  (No.  70). 


Same  to  same  (No. 
8.3). 


Same  to  same  (No. 
85). 


80  I  Same  to  same  (No. 
89). 


1^79. 

.IllIH',     2.^) 


Aug.      H 

Aug.    11 

Aug.    18 
Sept.   19 

1880. 
Apr.    19 

Aug.      2 

Dec.     14 


1879. 
May    29 


Aug.      8 


1880. 
Feb.    19 


Mar.     9 


Apr.    23 


Privatoeriug  ])r()j('cts  of  Bolivia  :  refers  to 
Department's  No.  12  and  incloses  Trea.s- 
nry  regulations  for  the  prevention  of 
violation  of  United  States  neutrality  laws 
liy  privateers  in  the  interest  of  Bolivia. 

Mediation  of  Colombia  for  cessation  of  hos- 
tilities between  Bolivia  and  Chili:  in- 
structed to  inform  Coloml)iau  envoy  who 
will  visit  La  Paz  to  proffer  such  media- 
tion, of  the  friendly  solicitude  of  the 
United  States  as  to  the  result  of  his  mis- 
sion. 

Neutrality  of  the  United  States  during  war 
between  Bolivia  and  Chili :  course  of  Mr. 
Pettis  in  assuring  minister  for  foreign  af- 
fairs of,  approved  ;  reply  to  No.  13. 

Peace  :  action  reported  in  his  No.  15  in  be- 
half of,  approved ;  position  of  United 
States  on  the  subject  of  mediation. 

Conduct  of  minister  in  conferring  with  Pres- 
idents of  Pern  and  Bolivia  and  giving  rise 
to  a  supposition  that  he  was  on  a  special 
mission  to  Peru,  Chili,  and  Bolivia;  ex- 
planation requested. 

Prisoners  of  war:  exchange  of,  between 
Chili  and  Bolivia ;  authorized  to  do  what 
he  can  to  bring  about  such  exchange. 

Policy  of  the  United  States  regarding 
peace  :  incloses  correspondence  with  min- 
ister to  Peru. 

Peace  negotiations :  failure  of,  regretted ; 
United  States  still  ready  to  do  whatever 
it  can  for  peace ;  his  personal  movements 
reported  in  his  No.  36  approved. 

War  between  Chili  and  Peru  :  No.  92,  trans- 
mitting Chili's  manifesto  justifying  her 
declaration  of  war  against  Peru , received ; 
the  war  is  regretted  by  the  United  States. 

Mediation  of  Colombia  for  cessation  of  hos- 
tilities: instructed  to  express  to  Colom- 
bian envoy  who  will  visit  Santiago  to 
proffer  mediation  the  friendly  solicitude 
of  the  United  States  as  to  the  result  of 
his  mission. 

Neutral  rights :  instructed  to  bring  atten- 
tion of  Chilian  Government  to  the  de- 
struction of  American  property  at  Talara 
and  Lobos  by  Chilian  naval  forces,  and 
to  inform  that  Government  that  the 
United  Stfites  expects  the  rights  of  its 
citizens  as  neutrals  to  be  respected,  in 
pursuance  of  treaty  and  international 
law. 

Foreign  intervention:  instructed,  i^  the 
event  of  attempt  being  made  by  Euro- 
pean powers  to  intervene  for  cessation  of 
hostilities,  to  endeavor  to  induce  Chili  to 
turn  to  the  United  States  as  an  arbitra- 
tor, rather  than  to  a  European  Govern- 
ment. 

Prisoners  of  war :  exchange  of,  between 
Chili  and  Bolivia;  copy  of  No.  3  to  the 
United  States  minister  at  La  Paz,  on  the 
subject,  inclosed. 


352 


CHAP.  III.] 


PERU. 


K59. 


86 

98 

10;} 

105 
110 


113 


120 


126 


127 


129 


Mr.  Evarts  to  Mr. 
Osborne  ( tel- 
egram). 

•Sauie  to  same  (tel- 
egram). 

Same  to  same  (No. 
109). 


Same  to  same  (tel- 
egram). 

Bame  to  same  (No. 
115). 


Same  to  same  (No. 
119). 


Mr.  Blaine  to  Mr. 
Kilpatrick    (No. 

2). 


Same  to  same  (No. 
13). 


Same  to  same  (tel- 
egram). 


Same  to  same  (No. 
16). 


1880. 
July    29 

Sept.  28 

Oct.     14 

Nov.    19 
Dec.    27 


1881. 
Feb.    10 


June   15 


Nov.   22 


Nov.   25 


Nov.    30 


Mediation:  "Press  upon  Chilian  Govern- 
ment our  desire  to  aid  in  restoring  peace 
on  honorable  terms." 

Peace  question:  "Proceed  as  jiroposed  if 
belligerents  accede  ;  insi  ructions  to  our 
vessels  when  you  telegraph  for  them." 

Mediation  :  procee<lings  of  legation  for,  by 
the  United  States  seem  to  prosper  thus 
far;  full  advices  awaited;  No.  163  and 
telegram  of  the  9th  instant  received. 

Neutrals :  instructed  as  to  taking  action 
for  protection  of  lives  and  property  of, 
when  Lima  is  attacked  by  Chilians. 

Arbitration  :  instructed  to  correct  errone- 
ous impression  that  the  United  States 
would  not  cheerfully  act  as  arbitrator, 
which  a  certain  remark  luade  by  him 
during  peace  conference  raay  have 
caused. 

Peace  question  :  urge  upon  Chili  the  desire 
of  the  United  States  to  bring  about 
peace;  now  that  the  Chilians  have  capt- 
ured Lima  and  Callao,  it  is  believed 
that  Peru  will  accept  mediation  of  the 
United  States  upon  any  reasonable  terms ; 
advises  him  of  instruction  of  this  date  to 
Mr.  Christiancy. 

Intervention  :  instructed  to  encourage  dis- 
position of  Chili  to  restore  self-govern- 
ment in  Peru  ;  to  urge  Chili  to  enter  into 
negotiations  for  peace  before  deciding  to 
take  portion  of  Peru  as  war  indemnity, 
and  to  endeavor  to  have  European  inter- 
vention excluded  from  adjustment  of  the 
peace  question. 

Peace  question :  his  note  to  the  foreign 
ofiice  to  allay  apprehension  and  correct 
false  impression  produced  by  the  United 
States  minister  at  Lima  strongly  disap- 
proved ;  Chili  had  no  grounds  for  ai)pre- 
hension  and  should  not  have  applied  to 
legation  ;  her  course  in  suppressing  Cal- 
deron  government  unintelligible  in  view 
of  her  previous  assurances,  reported  in 
legation's  No.  3;  arrest  of  Calderou  re- 
gretted ;  hopes  it  is  not  intended  as  a  re- 
buke to  the  United  States  on  account  of 
ditferences  between  him  and  bis  col- 
league at  Lima ;  a  special  envoy  will  be 
sent  to  endeavor  to  arrange  a  peace ;  re- 
ply to  No.  8. 

Calderon  government ;  its  suppression  and 
arrest  of  President  Calderon  are  not  un- 
derstood by  United  States;  special  envoy 
leaves  Washington  for  Chili  immediately, 
and  it  is  hoped  that  farther  action  will 
await  his  arrival. 

Relieves  him  of  negotiations  for  solution 
of  peace  question;  informs  him  as  to  ap- 
pointment and  powers  of  Mr.  Trescot  as 
special  envoy  extraordinary  and  minis- 
ter plenipotentiary  to  conduct  such  ne- 
gotiations; appointment  of  Third  Assist- 
ant Secretary  of  State  as  assistant  to  Mr. 
Trescot ;  Mr.  Kilpatrick  expected  to  aid 
Mr.  Trescot. 


171 


S.  Mis.  162— VOL.  I 23 


353 


§59.] 


INTERVENTION. 


[OHAP.  III. 


130 


131 


132 


Mr.  Blaiue  to  Mr. 
Trescot  (No.  1). 


Mr.  Blaine  to  Mr. 
Walker  Blaine. 

Mr.  Blaine  to  Mr. 
Trescot  (No.  2). 


134 

137 
138 


Same  to  same  (No. 
3). 


Mr.  Blaine  to  Mr. 

Walker  Blaine. 
Mr.  Blaiue  to  Mr. 

Trescot  (No.  4). 


1881. 
Nov.   30 


Nov.    30 


Dec.      1 


Dec. 


Dec. 


Dec.    16 


Personal  instructions  as  special  envoy  ex- 
traordinary and  minister  plenipotentiary 
to  Chili,  Peru,  and  Bolivia  to  negotiate 
for  solution  of  peace  question. 

Personal  instruction  as  Httacb6  to  special 
missiou  for  settlement  of  the  peace  ques- 
tion. 

Reviews  previous  instructions  and  steps 
which  led  to  recognition  of  Calderon 
government;  the  act  an  adoption  of  pol- 
icy friendly  to  Chili ;  it  was  followed  by 
Chilian  military  order  forbidding  Cal- 
deron goverument  to  exercise  its  func- 
tions; President  will  not  assume  this  as 
done  in  consequence  of  the  recognition 
by  the  United  States ;  if  such  a  motive 
should  be  avowed,  Mr.  Trescot  instructed 
to  say  that  it  is  regarded  as  an  inten- 
tional offense,  and  to  suspend  diplomatic 
intercourse,  but  he  may  receive  any  ex- 
planation which  does  not  involve  a  dis- 
avowal of  Mr.  Hurlbut.  The  United 
States  wishes  first  to  stop  bloodshed  and 
misery ;  second,  to  take  care  that  the 
Government  of  the  United  States  is 
treated  with  the  consideration  to  which 
it  is  entitled,  and  would  be  satisfied  with 
manifestation  of  purpose  in  Chili  either 
to  restore  Calderon  goverument  or  estab- 
lish one  which  will  be  allowed  freedom 
of  action  in  negotiations.  Should  Chili 
refuse  to  allow  formation  of  government 
not  pledged  to  consent  to  cession  of  ter- 
ritory, he  is  to  express  dissatisfaction  of 
the  United  States.  The  United  States 
recognizes  Chili's  right  to  adequate  in- 
demnity and  guarantee,  l)ut  that  the  ex- 
ercise of  the  right  of  absolute  conquest 
is  dangerous ;  and  the  United  States 
think  that  Peru  has  the  right  to  demand 
an  opportunity  to  find  indemnity  and 
guarantee  without  cession  of  territory. 
The  prohibition  of  the  formation  of  a 
government  is  practical  extinction  of 
the  state.  If  good  offices  are  refused  on 
this  basis,  the  United  States  holds  itself 
free  to  appeal  to  the  other  Republics  of 
the  continent  to  join  with  it.  Instruc- 
tions given  in  accordance,  and  a  tempo- 
rary convention  counseled. 

Congress  of  American  Governments :  au- 
thorized to  return  home  by  way  of  Ar- 
gentine Republic  and  Brazil  and  to  urge 
the  Governments  of  those  countries  to 
accept  our  invitation  to  such  congress. 

Charge ;  instructed  to  assume  duties  as, 
on  his  arrival  at  Santiago. 

Claims  of  the  United  States  citizens  vs. 
Peru ;  Cochet  claim  and  Landreau  claim. 
Explains  position  of  the  United  States 
regarding  them,  in  order  to  correct  mis- 
statements which  are  being  circulated 
by  the  press.  If  Chili  should  acquire 
territory  from  Peru,  it  is  expected  that 
whatever  rights  Mr.  Landreau  may  have 
in  such  territory  will  be  respected  by 
Chili.  Correspondence  with  minister  at 
Lima  inclosed. 


354 


CHAP.  III.] 


PERU. 


[§59. 


Mr.  Frclinghuysen 
to  Mr.  Trescot 
(telegram). 

Same  to  same  (tele- 
gram). 


Mr.  Frelinghuysen 
to  Mr.  Martinez. 


Mr.  Frelinghuysen 
to  Mr.  Trescot 
(No.  6). 

Mr.  Frelinghuysen 
to  Mr.  Martinez. 


Mr.  Evarts  to  Mr. 
Christiancy  (No. 
4). 

Same  to  same  (No. 
20). 


Same  to  same  (No. 
24). 


Mr.  Evarts  to  Mr. 

Tracy. 
Same  to  same  .... 


Mr.  Evarts  to  Mr. 
Christiancy  (No. 
29). 


Same  to  same  (No. 
30). 


Mr.  F.  W.  Seward 
to  Mr.  Chris- 
tiancy (No.  32). 


1881; 

Jan. 

3 

Jan. 

4 

Jan. 

7 

Jan. 

9 

Jan. 

16 

187£ 
Apr. 

9 

Juno 

18 

June 

26 

June 

27 

July 

19 

Aug. 

8 

Aug. 

8 

Aug. 

18 

Pacific  influence;  informs  him  that  same 
should  be  exerted,  and  all  issues  which 
might  lead  to  his  withdrawal  from  Chili 
avoided. 

Impartial  extension  of  friendly  offices  to 
both  Republics ;  exertion  of  pacific  in- 
fluence, and  avoidance  of  possibly  offen- 
sive issues,  are  desired  by  the  President. 
Directs  him  not  to  return,  via  Buenos 
Ayres.  Calderon  difficulty  can  be  set- 
tled here. 

Arrest  of  President  Calderon;  requested  to 
repeat  in  writing  the  assurance  given 
orally  by  him  that  it  was  not  instigated 
by  an  unfriendly  feeling  towards  the 
United  States. 

(Quoted,  supra,  $  45.) 


Arrest  of  Calderon;  note  giving  assurance 
that  it  was  not  intended  as  an  afi"ront  to 
the  United  States  received  with  gratifi- 
cation. 

Approves  action  of  Mr.  Gibbs  in  reporting 
relative  to  the  war ;  expresses  gratifica- 
tion at  the  decision  of  Peru  in  deciding 
to  maintain  strict  neutrality. 

Approves  action  in  behalf  of  neutral  rights 
reported  in  his  No.  7  ;  European  capital- 
ists are  seeking  to  bring  about  an  un- 
due observance  of  such  rights  during 
present  war;  the  United  States  not  dis- 
posed to  bave  belligerent  rights  abridged 
in  behalf  of  neutrals;  opinion  of  Attor- 
ney-General Stanbery  justifying  bom- 
bardment of  unfortified  places  inclosed. 
(Quoted,  infra,  §  228.) 

Privateering  projects  of  Bolivia;  copy  of 
Department's  No.  12  to  the  United  States 
minister  at  La  Paz  inclosed;  instructed 
to  inform  Peru  that  the  United  States 
does  not  intend  to  j^ermit  any  violation 
of  its  neutrality  laws. 

Note  of  24th  instant,  inclosing  uumifcsto 
vindicating  Peru's  cause,  received. 

Note  of  16th  instant,  transmitting  report 
made  to  Peruvian  Congress  by  minister 
forforeignaff'airs,  which  sets  forth  antece- 
dents of  war,  received;  thanks. 

Blockade  of  Iquique  ;  views  and  proceed- 
ings set  forth  in  his  No.  34  ajjproved ; 
action  he  shonld  t;ike  in  case  the  block- 
ade should  at  any  time  prove  ineffectual, 
stated,     (/n/ra, §  361.) 

Mediation  of  Colombia  for  cessation  of  hos- 
tilities between  the  belligerents;  in- 
structed to  express  to  Colombian  envoy, 
who  will  visit  Lima  to  proffer  media- 
tion, the  friendly  solicitude  of  the  United 
States  as  to  the  result  of  his  mission. 

Mediation  of  the  United  States  for  cessa- 
tion of  hostilities ;  approves  Mr.  Chris- 
tiancy's  reserve  in  conversing  with  Col. 
H.  N.  Fisher,  who  has  no  official  connec- 
tion with  Government  of  the  United 
States  ;  Department  imparted  to  him  its 
position  ou  the  subject  of  mediation ; 
reply  to  No.  37. 


§  59.] 


INTERVENTION. 


[chap.  III. 


Mr.  F.W.  Seward  to 
Mr.  Christiancy 
(No.  3:5). 

Same  to  same  (No. 
34). 

Mr.  F.  W.  Seward 
to  Mr.  Tracy. 


Mr.  F.  W.  Seward 
to  Mr.  Chris- 
tiaucy  (No.  36). 

Mr.  Hunter  to  Mr. 
Tracy. 


Same  to  same 


Mr.  Hunter  to  Mr. 
Christiancy  (No. 
39). 


Mr.  Evarts  to  Mr. 
Cliristiancy  (No. 
40). 


Mr.  F.  W.  Seward 
to  Mr.  Tracy. 


Mr.  F.  W.  Seward 
to  Mr.  Christiancy 
(No.  42). 

Mr.  Hay  to  Mr. 
Christiancy  (No. 
47). 


Mr.  Evarts  to  Mr. 

Christiancy 

(telegram). 
Same  to  same  (No. 

55). 

356 


1879. 
Aug.    18 


Aug.    Iri 
Aug.    19 

Aug.    25 

Sept.  10 
Sept.  10 

Oct.       1 


Oct.     13 


Oct.     21 


Oct.    22 


Nov.   26 


1880. 
Jan.    24 


Jan.    26 


Mr.  Christiancy's  efforts  and  suggestions 
in  behalf  of  cessation  of  war  approved  ; 
reply  to  No.  36. 

Blockade  of  Iquique :  instruction  to  con- 
sul, inclosed  in  his  No.  39,  in  regard  to, 
approved. 

Transportation  of  munitions  of  war  across 
the  Isthmus  of  Panama  :  his  note  of  24th 
ultimo,  asking  the  Department  to  re- 
quest Colombia  to  permit  same,  will  re- 
ceive consideration. 

Bombardment  of  Iquique  :  views  of  lega- 
tion and  its  dispatch  to  consul  at  Iqui- 
que upon  the  suljject  approved  ;  reply  to 
No.  41. 

Note  of  4th  instant,  narrating  events  of 
war,  received,  and  will  be  duly  consid- 
ered. 

Transportation  of  munitions  of  war  across 
the  Isthmus  of  Panama;  note  of  22d 
ultimo,  stating  that  Colombia  has  dis- 
approved action  of  Panama  in  prohibit- 
ing such  transportation,  received. 

Views  which  have  been  expressed  by  min- 
ister, in  conversation  in  Lima,  concern- 
ing peace  question,  approved ;  the 
United  States  does  not  tender  its  good 
offices  for  peace,  but  will  not  hesitate  to 
use  them  tor  that  purpose  if  called  upon 
by  belligerents  to  do  so ;  tlie  United 
States  will  not  engage  in  any  interven- 
tion which  is  not  solicited,  or  which  is 
in  disparagement  of  belligerent  rights; 
Mr.  Pettis's  unauthorized  and  rash  ex- 
periment in  visiting  Lima  and  Santiago 
has  had  some  good  effects ;  statements  in 
Chilian  newspapers  adverse  to  Mr.  Pettis 
regarded  as  unfounded. 

Pacific  instructions  requested  iu  his  No.  59 
have  already  been  given ;  approves  ac- 
tion reported  in  his  No.  59  ;  instructs  him 
as  to  correction  of  any  wrong  impression 
which  may  have  been  created  by  Mr. 
Pettis  or  Mr.  Fisher  as  to  policy  of  the 
United  States;  he  may  pledge  immedi- 
ate action  by  the  United  States  for  peace, 
provided  no  other  Government  be  in- 
vited to  mediate. 

Betrayal  of  Peru  by  Bolivia ;  documents 
tending  to  show  efforts  of  Chili  to  in- 
duce same,  which  accompanied  his  note 
of  17th  instant,  will  be  considered. 

Approves  his  sugjiestion  to  Mr.  Osborn  as 
to  his  course  ;  Department  adheres  to 
policy  indicated  in  previous  instruc- 
tions; reply  to  No.  62^. 

Communication  between  legation  and  De- 
partment ;  if  same  should  be  cut  off  by 
Chili,  he  should  not  adopt  any  special 
means  of  communication,  except  in  case 
of  absolute  necessitv. 


Recognition     of    Pi^rola's     government :     322 
leaves  time  and  manner  of,  to  minister's 
discretion.     (See  hi/ra  §  70.) 

Recognition    of     Pi^rola's    government: 
question  of,  is  left  to  ministerB. 


CHAP.  III.] 


PERU. 


[§59. 


Mr.  Evarts  to  Mr. 
Tracy. 

Mr.  Evai'ts  lo  Mr. 
Christiaucy  (No. 
57). 


Mr.  Evarts  to  Mr. 

Christiancy  (No. 

58). 
Same  to  same  (No. 

63). 


Mr.  Evarts  to  Mr. 
Calderon. 


Same  to  same . 


Mr.  Evarts  to  Mr. 
Christiancy  (No. 
64). 


239     Same  to  same  (No. 
65). 


1880. 
Jan.    31 


Feb.      4 

Feb.    18 
Mar.      1 


Mar.      1 


Mar.      1 


Mar.      1 


Mar.     2 


Same  to  same  (No.      Mar.    10 
69). 


Mr.  Evarts  to  Mr. 
Tracy. 


Mar.    22 


Recognition  of  Pi^rola's  government:  cer- 
emonial letter  received  ;  friendly  expres- 
sions. 

Recognition  of  Pi6rola'8  government;  in- 
structed to  recognize  Pi<Srola'8  govern- 
ment if  he  has  not  already  done  so ;  note 
of  the  3l8t  ultimo  from  Department  to 
Peruvian  charg(?,  inclosed. 

Damages  to  American  projjerty  by  Chilian 
forcesat  Lobos  Island  ;  action  of  legation 
as  reported  in  No.  lO.'j  approved. 

Denies  right  of  Peru  to  seize  neutral  ves- 
sels loaded  with  nitrates  taken  from  beds 
which  belong  to  Peru,  but  which  are  now 
in  military  possession  of  Chili,  as  treaty 
provides  that  free  ships  make  free  goods; 
instructed  to  enjoin  Peru  not  to  enforce 
her  claimed  rights ;  reply  to  No.  106 ; 
notes  to  foreign  ofilice  in  reply  to  its  cir- 
culars inclosed  for  delivery. 

Neutral  vessels  loaded  with  nitrate  taken 

•  from  beds  which  belong  to  Peru  and  are 
now  in  military  possession  of  Chili ;  right 
claimed  by  Chili  to  seize  same ;  United 
States  legation  at  Lima  will  inform  Peru 
of  Department's  views  on  subject ;  reply 
to  note  of  14th  January. 

Blockades  established  by  Chili  at  Peruvian 
ports:  inef3Sciency  of ;  if  Chili  seizes  any 
American  vessel  for  entering  a  port 
which  is  insufficiently  blockaded  she 
will  be  required  to  make  reparation  ;  re- 
ply to  note  of  14th  January. 

Blockade  of  Mollendo  by  Chilian  squadron  : 
legation's  instruction  to  consular  agent 
at  Arica relative  to.  ap])roved  :  instructed 
to  take  no  notice  of  any  manifesto  on 
subject  unless  it  is  addressed  to  him  in 
his  official  capacity. 

Belligerent  rights  of  Pern  ;  question  as  to 
authority  of  consul  at  Iquique,  which  is 
now  in  possession  of  the  Chilians,  to  grant 
clearances  to  vessels  loaded  with  nitrates 
taken  from  beds  belonging  to  Peru,  but 
now  in  military  possession  of  Chili ;  No. 
112  received ;  consuls  have  no  right  to 
grant  clearances  under  any  circum- 
stances ;  local  authorities  alone  have  such 
rights;  when  these  authorities  grant 
vessels  clearances  consul  should  deliver* 
to  such  vessels  their  papers ;  consuls  can- 
not gainsay  opinion  of  the  existing  au- 
thority at  his  port  as  to  what  may  be 
lawfiiily  exported  ;  Peru's  resentment  at 
exportation  of  these  nitrates  is  natural, 
but  her  assertion  of  right  to  seize  neu- 
tral vessels  loaded  with  them  is  contrary 
public  law  and  will  not  bo  admitted  by 
foreign  Governments. 

Recognition  of  government  of  Pi6rola;  ac- 
tion of  legation,  as  reported  in  115,  ap- 
proved. 

His  note  of  9th  instant,  denying  rumor  of 
desertion  of  Peru  by  Bolivia,  acknowl- 
edged. 

357 


336 
i  344 


§59.] 


INTERVENTION. 


[chap.  III. 


Mr.  Evarts  to  Mr. 
Chriatiaucy  (No. 
76). 


Same  to  same  (No. 
77). 

Mr.  Evarts  to  Mr. 
Tracy. 


Mr.    Hay    to    Mr. 

Christiancy  (No. 
90). 


Mr.  Evarts  to  Mr. 
Christiancy  (No. 
93). 


Mr.    Hay    to    Mr. 

Christiancy  (No. 

97), 
Same  to  same  (No. 

99). 


Same  to  same  (No. 
102). 


Same  to  same  (No. 
108). 


Mr.  Evarte  to  Mr. 
Garcia. 


Mr.  Evarts  to  Mr. 
<  Christiancy  (No. 
109). 


Mr.   Evarts  to  Mr. 
Garcia. 


Mr.  Evarts  to  Mr. 
Christiancy,  No. 
112). 

Mr.  Hay  to  Mr. 
Garcia. 


35$ 


1880. 
Apr.    19 


Apr.  23 

Apr.  28 

Jnne  30 

July  30 

Aug.  16 

Aug.  16 

Aug.  25 

Nov.  9 

Nov.  13 

Nov.  27 

Dec.  1 

Dec.  13 

Dec.  22 


Menacing  and  violation  of  neutral  rights 
by  Chili;  protest  will  be  addressed  to 
Chilian  minister  here  against  injury  to 
the  United  States  citizens;  instructed  to 
protest  to  Peru,  in  event  of  her  resorting 
to  wanton  destruction  of  life  and  prop- 
eity,  as  Chili  has  done  ;  reply  to  140. 

Exchange  of  prisoners  of  war  between  Bo- 
livia and  Chili ;  No.  3  to  the  United  States 
minister  at  La  Paz  inclosed. 

Blockade  of  Callao  by  Chilians  and  open- 
ing of  other  ports  by  Peru  instead :  an- 
nouncement of,  received  and  communi- 
cated to  Treasury. 

Charges  preferred  by  Chili  against  Mr. 
Merriam,  consul  at  Iquique,  of  assisting 
Peru  in  the  war ;  instructed  to  investi- 
gate the  same,  and  if  they  prove  well 
founded,  to  remove  Mr.  MeiTiam. 

Mode  suggested  by  United  States  minister 
at  Santiago  of  rendering  good  offices  of 
United  States  available  for  cessation  of 
hostilities  approved ;  confirms  Depart- 
ment's telegram  of  29th  instant. 

Mediation;  advises  him  of  disposition  of 
Chili  to  accept  our  mediation  and  asks 
■what  is  the  disposition  of  Peru. 

Iquique ;  charges  vs.  Consul  Merriam  of 
having  assisted  Peru  in  the  war,  pre- 
ferred by  Chili ;  approves  course  reported 
in  his  175. 

Outrage  perpetrated  upon  the  United 
States  consul  and  flag  at  Arica  by  Chilian 
soldiery:  further  information  relative  to, 
requested  ;  reply  to  No.  183. 

Charges  preferred  against  consul  at  Iqui- 
que of  assisting  Peruvians  iu  the  war; 
approves  investigation  of  legation  ;  in- 
structed to  give  proper  attention  to  any 
further  evidence  in  the  matter  which 
may  be  adduced. 

Mediation  of  the  United  States  between 
Peru  and  Chili  :  advises  him  of  failure 
of;  regret  and  chagrin  of  Department; 
United  States  will  welcome  any  further 
opportunity  it  may  have  presented  to  it 
to  promote  restoration  of  peace ;  reply 
to  note  of  25th  ultimo. 

Neutrals  :  protection  of  the  lives  and  prop- 
erty of,  iu  the  event  o'"  an  attack  by  the 
Chilians  upon  Lima;  g'ves  text  of  De- 
partment's telegram  of  iPth  instant  to 
legation  at  Santiago. 

Mediation  of  the  United  States  between 
Peru  and  Chili  ;  failure  of  peace  negoti- 
ations regretted  ;  note  of  27th  ultimo  re- 
ceived. 

Peace  negotiations  :  failure  of,  regretted  ; 
the  United  States  still  stands  ready  to 
do  whatever  it  properly  can  to  bring 
about  peace  ;  reply  to  No.  200. 

Mediation  of  the  United  States  between 
Peru  and  Chili:  failure  of;  his  note  of 
18th  instant  transmitting  circular  from 
his  Government  censuring  Chili  re- 
ceived. 


CHAP.  III.] 


PERU. 


[§59. 


Mr.  Evarts  to  Mr. 
Christiancj'  (No. 
119). 


Same  to  same  (No. 
12;^). 


Same  to  same  (No. 
129). 


Mr.  Blaiue  to  Mr. 

Christiancy  (No. 

143;. 
Same  to  same  (No. 

144). 

Mr.  Blaine  to  Mr. 
Hurlbut(No.2). 


Same  to  same  (No. 
7). 


Mr.  Blaine  to  Mr. 
Elmore. 


Same  to  same . 


Mr.    Hitt    to    Mr. 
Elmore. 


1881. 
Jau.    25 


Feb.    10 


Feb.  17 

May  9 

May  12 

June  15 


Aug.     4 


Aug.   27 


Aug.    31 


Oct.     13 


Neutrals  :  jeopardization  of  lives  and  prop- 
erty of,  by  Peru  in  sending  adrift  vessels 
loaded  with  explosive  materials ;  in- 
structed to  remonstrate  if  bo  sball  as- 
certain tbat  such  course  has  been  pur- 
sued by  Peru.     (Infra  ^  349.) 

Desire  of  United  States  to  bring  about 
peace;  instructed  to  urge  same  upon 
Peruvian  Government,  and  upon  such 
Chilian  officers  as  he  may  meet ;  Peru- 
vians having  evacuated  Lima  and  Callao, 
Peru  desires  foreign  aid  in  behalf  of 
peace,  as  appears  from  a  telegram  just 
received  from  the  Peruvian  minister 
here. 

Scheme  of  the  Soci6t6  g6n^rale  de  credit  in- 
dustrial et  commercial  for  liquidation  of 
financial  obligations  of  belligerents  ;  au- 
thorized to  submit  the  same  for  consid- 
eration in  connection  with  discussion  of 
peace  question ;  may  advise  Mr.  Osborn 
and  Mr.  Adams. 

Calderon  government:  authorizes  recogni- 
tion of. 

Forced  loans:  non-liability  of  Americans 
in  Peru  to  ;  his  views  as  reported  in  his 
No.  182  approved. 

Peace  question  ;  instructed  to  encourage 
Peruvians  to  accept  reasonable  condi- 
tions, and  to  Impress  upon  Chilian  au- 
thorities in  Peru  the  advantages  of  lib- 
eral treatment  of  Peru  by  their  Govern- 
ment ;  course  which  Peru  should  pursue 
so  as  to  avoid  loss  of  territory  in  indem- 
nification of  Chili ;  directed  to  aid  Peru 
in  pursuing  this  course ;  United  States 
would  assist  the  execution  of  any  satis- 
factory plan  for  satisfying  Chili's  de- 
mands by  means  of  money ;  No.  2  to 
legation  at  Santiago  inclosed. 

Claims  of  United  States  citizens  v*.  Peru, 
growing  out  of  contracts;  Cochet  claim 
and  claim  of  John  C.  Landreau ;  in- 
structed to  report  on  former,  and  to  de- 
mand justice  in  the  case  of  the  latter; 
in  treaty  of  peace  between  Chili  and 
Peru,  provision  must  be  made  for  recog- 
nition by  Chili  of  Landreau's  claim  us  a 
prior  lien  upon  any  territory  which 
Peru  may  be  required  to  cede  to  Chili  ; 
sets  forth  denial  of  justice  in  Mr.  Lan- 
dreau's case. 

Recognition  of  Mr.  Elmore  ;  credentials  may 
be  presented  at  a  future  time;  will  be 
informally  recognized  if  he  will  deliver 
office  cdpy  of  his  credentials. 

Recognition  of  Mr.  Elmore  ;  copy  of  creden- 
tials received;  trust  to  be  able  before 
long  to  arrange  for  his  presentation  to 
the  President ;  reply  to  note  of  29th  in- 
stant. 

Peace  question ;  may  call  at  Department 
at  any  time  for  an  interview ;  reply  to 
note  of  11th  instant. 

359 


§59.] 


INTERVENTION. 


[chap.  in. 


366 


367 


371 


374 


375 


Mr.  Blaine  to  Mr. 
Hurlbut  (tele- 
gram). 

Same  to  same  (tele- 
gram). 


Same  to  same  (No. 
17). 


Same  to  same  (No. 
18). 


Same  to  same  (No. 
19). 


378     Same  to  same  (tele-     Nov.    26 
gram). 


379 

380 


382 


1881. 
Oct.    27 


Oct.     31 


Nov.    17 


Nov.    19 


Nov.    22 


Mr.  Blaioe  to  Mr.  |  Nov.    26 

Elmore. 
Mr.  Blaine  to  Mr.     Nov.    30 

Hurlbut  (No.  21). 


Same  to  same  (No.     Dec.      3 
25). 


Financial  schemes;  "  Influeuceof  yourposi- 
tion  must  not  be  uhchI  in  aid  of  Credit  In- 
dustrie! or  any  other  financial  or  specula- 
tive association." 

Calderou  government ;  "Continue  to  recog- 
nize Calderon  government  until  other- 
wise specially  instructed  ;  acknowledge 
receipt." 

Claim  of  United  States  citizens  rs.  Peru; 
Cochet  claim  and  Landreau  claim  ;  the 
former  is  not  proper  for  presentation  ; 
United  States  citizens  in  purchasing  the 
claim  of  a  Peruvian  against  his  Govern- 
ment acquires  no  more  rights  than  the 
Peruvian  had,  and  as  he  had  no  right  to 
intervention  of  United  States,  such  right 
did  not  pass  to  the  purchasers  of  his 
claim  ;  Landreau  claim  should  be  witti- 
heldfrom  presentation  until  opportunity 
for  its  adj  ustment  offers  ;  course  reported 
in  his  No.  12  approved ;  condemns  con- 
duct of  J.  R.  Shipherd,  attorney  for  the 
Cochet  claims. 

Financial  schemes:  explains  Department's 
telegram  of  27th  ultimo  ;  minister's  posi- 
tion in  regard  to,  for  restoration  of  Peru 
should  be  a  negative  one  ;  in  case  an  op- 
portunity arises  for  us  to  be  useful  in 
abetting  such  scheme,  minister  should 
take  no  important  step  without  instruc- 
tions. 

Peace  question ;  disai^proves  memorandum 
addressed  by  him  to  Admiral  Lynch,  and 
his  note  to  Pi6rola's  secretary,  and  the 
convention  he  concluded  for  establish- 
ment of  naval  stations  at  Chirabote,  and 
his  telegram  to  legation  at  Buenos  Ayres 
requesting  that  a  minister  be  sent  by 
Argentine  Republic  to  Peru  ;  instructed 
to  recognize  Calderon  government,  or, 
if  none  such  exist,  to  remain  inactive  at 
Lima  until  receipt  of  further  instruc- 
tions ;  in  view  of  differences  between 
him  and  his  colleague  at  Santiago  a 
special  envoy  will  be  sent  to  arrange  set- 
tlement of  peace  question. 

Peace  question;  "Special  envoy  leaves 
Washington  for  Peru  immediately  ;  con- 
tinue recognition  of  Calderon  govern- 
ment." 

Peace  question ;  note  of  18th  instant  re- 
ceived. 

Relieves  him  of  negotiations  for  settlement 
of  peace  question;  informs  him  as  to 
appointment  and  powers  of  Mr.  Trescot 
and  Mr.  Walker  Blaine  to  conduct  such 
negotiations  ;  he  will  be  expected  to  aid 
this  special  commission. 

Coaling  stations ;  strongly  disapproves 
protocol  concluded  by  hini  with  Calderon 
government  for  cession  of  such  stations 
to  the  United  States,  and  rebukes  him 
for  concluding  it ;  railway  grant ;  se- 
verely reprimands  him  for  obtaining 
same  for  himself  from  Peru  ;  reply  to 
No.  19. 


360 


CHAP.  III.] 


CUBA. 


[§60. 


383 


394 


396 


428 


Mr.  Blaine  to  Mr. 
Hurlbut  (No.  '26). 


1881. 
Dec.      5 


Mr.  Blaine  to  Mr. 

Morton  (No.  30). 


Same  to  same  (tele- 
gram). 


Mr.  Evarts  to  Mr. 
Suarez. 


Sept. 


Nov.    14 


1879. 
Feb.    17 


Cochet  heirs  :  Claim  vs.  Pern,  upon  which  i  579 
Peruvian  company's  scheme    is   liased  ;  ! 
No.  '25  received;    ministi-r's   action   ap-  | 
proved;  indecency  and  dishonor  of  Mr.  ' 
Shipherd,  the   agent  of  the   company  ; 
eminent  New  York  gentlemen,  who  are  al- 
leged to  belong  to  the  company,  are  prob- 
ably as  ignorant  of  the  usiof  their  names 
as  Mr.  Blaine  was  of  the  absnrd   state-  , 
ments  attributed  to  him  by  Mr.  Shipherd.  j 

Chili-Peruvian    war  ;    declination    of    the     597 
United  States  to  enter  into  negotiations 
with  European  powersfor  joint  interven- 
tion for  peace  ;  reply  to  No.  6.  i 

Chili-Peruvian  war:  full  account    of  any     599 
interview    he    has    had    recently    with 
French  Government  relative  to,  and  es-  i 
pecially  any  relating  to,  recognition  of  I 
Peruvian  minister,  requested.  |. 

War  iademnity  :  acknowledges  letters  rel-  I  701 
ative  to,  and  says  ministers  to  Chili  and  I 
Peru  have  been  informed  of  the  proposi-  •   ' 
tion  of  the  societ.6  relative  to  payment 
of;  the  United  States  is  ready  to  aid  in 
bringing  about  peace. 


(3)  Cuba. 
§60. 

"  In  the  war  between  France  and  Spain,  now  commencing,  other  inter- 
ests, peculiarly  ours,  will  in  all  probability  be  deeply  involved.  What- 
ever may  be  the  issue  of  this  war  as  between  those  two  European  powers, 
it  may  be  taken  for  granted  that  the  dominion  of  Spain  upon  the  Ameri- 
can continents,  north  and  south,  is  irrevocably  gone.  But  the  ishmds 
of  Cuba  and  Porto  Rico  still  remain  uoininally,  and  so  far  really,  de- 
pendent upon  her,  that  she  yet  possesses  the  power  of  transferring  her 
own  dominion  over  them,  together  with  the  possession  of  them,  to 
others.  These  islands,  from  their  local  position  are  natural  ai)pend- 
ages  to  the  North  American  continent,  and  one  of  them  (Cuba)  almost 
in  sight  of  our  shores,  from  a  multitude  of  considerations  has  become 
an  object  of  transcendent  importance  to  the  commercial  and  political 
interests  of  our  Union.  Its  commanding  position,  with  reference  to  the 
Gulf  of  Mexico  and  the  West  India  seas;  the  character  of  its  popula- 
tion ;  its  situation  midway  between  our  southern  coast  and  the  island 
of  San  Domingo;  its  safe  and  capacious  harbor  of  the  Havana,  fronting 
a  long  line  of  our  shores  destitute  of  the  same  advantage;  the  nature 
of  its  productions  and  of  its  wants,  furnishing  the  supplies  and  needing 
the  returns  of  a  commerce  immensely  profitable  and  mutually  beneficial, 
give  it  an  importance  in  the  sum  of  our  national  interests  with  which 
that  of  no  other  foreign  territory  can  be  compared,  and  little  inferior  to 
t;hg,t  which  binds  the  'different  members  of  this  Union  together.     Such, 

361 


J  60.]  INTERVENTION.  [CHAP.  III. 

indeed,  are,  between  the  interests  of  that  island  and  of  this  country, 
the  g:eo<;rai)hical,  commercial,  moral,  and  political  relations  formed  by 
nature,  gathering,  in  the  process  of  time,  and  even  now  verging-  to  ma- 
turity, that,  in  looking  forward  to  the  probable  course  of  events  for  the 
short  period  of  half  a  century,  it  is  scarcely  i^ossible  to  i^esist  the  con- 
viction that  the  annexation  of  Cuba  to  our  Federal  Republic  will  be  in- 
dispensable to  the  continuance  and  integrity  of  the  Union  itself. 

''  It  is  obvious,  however,  that  for  this  event  we  are  not  yet  prepared. 
Numerous  and  formidable  objections  to  the  extension  of  our  territorial 
dominions  beyond  sea  present  themselves  to  the  first  contemplation  of 
the  subject;  obstacles  to  the  system  of  policy  by  which  alone  that  re- 
sult can  be  compassed  and  maintained,  are  to  be  foreseen  and  sur 
mounted,  both  from  at  home  and  abroad;  but  there  are  laws  of  polit- 
ical as  well  as  of  physical  gravitation;  and  if  an  apple,  severed  by  the 
tempest  from  its  native  tree,*  cannot  choose  but  fall  to  the  ground,  Cuba, 
forcibly  disjoined  from  its  own  unnatural  connection  with  Spain,  and. 
incapable  of  self-support,  can  gravitate  only  towards  the  Xorth  Amer- 
ican Union,  which,  by  the  same  law  of  nature,  cannot  cast  her  off  from 
its  bosom. 

"  In  any  other  state  of  things  than  that  which  springs  from  this  incip- 
ient war  between  France  and  Spain,  these  considerations  would  be 
premature.  They  are  now  merely  touched  upon  to  illustrate  the  posi- 
tion that,  in  the  war  opening  upon  Europe,  the  United  States  have 
deep  and  important  interests  involved,  peculiarly  their  own.  The  con- 
dition of  Cuba  cannot  but  depend  upon  the  issue  of  this  war.  As  an 
integral  part  of  the  Spanish  territories,  Cuba  has  been  formally  and 
solemnly  invested  with  the  liberties  of  the  Spanish  constitution.  To 
destroy  those  liberties,  and  to  restore,  in  the  stead  of  that  constitution, 
the  dominion  of  the  Bourbon  race,  is  the  avowed  object  of  this  new  in 
vasion  of  the  Peninsula.  There  is  too  much  reason  to  apprehend  that, 
in  Spain  itself,  this  unhallowed  purpose  will  be  attended  with  immedi- 
ate, or  at  least  with  temporary  success.  The  constitution  of  Spain  will 
be  demolished  by  the  armies  of  the  Holy  Alliance,  and  the  Si)anish  na 
tion  will  again  bow  the  neck  to  the  yoke  of  bigotry  and  despotic  sway. 
Whether  the  purposes  of  France,  or  of  her  continental  allies,  extend 
to  the  subjugation  of  the  remaining  ultramarine  possessions  of  Spain 
or  not,  has  not  yet  been  sufficiently  disclosed.  But  to  confine  ourselves 
to  that  which  immediately  concerns  us — the  condition  of  the  Island  of 
Cuba — we  know  that  the  republican  spirit  of  freedom  prevails  among 
its  inhabitants.  The  liberties  of  the  constitution  are  to  them  rights  in 
possession  ;  nor  is  it  to  be  presumed  that  they  will  be  willing  to  surren- 
der them,  because  they  may  be  extinguished  by  loreign  violence  in  the 
parent  country.  As  Spanish  territory,  the  island  will  be  liable  to  in- 
vasion from  France  during  the  war;  and  the  only  reasons  for  doubting 
whether  the  attempt  will  be  made,  are  the  probable  incompetency  of  the 
French  maritime  force  to  effect  the  conquest,  and  the  probability  that 


CHAP.  III.]  CUBA.  [§  60. 

its  accomplishment  would  be  resisted  by  Great  Britain.  In  the  mean 
time,  and  at  all  events,  the  condition  of  the  island  iu  regard  to  that  of 
its  inhabitants  is  a  condition  of  great,  imminent,  and  complicated  dan- 
ger ;  and  without  resorting  to  speculation  upon  what  such  a  state  of 
things  must  produce  upon  a  people  so  situated,  we  know  that  its  ap- 
proach has  already  had  a  powerful  effect  u|)on  them,  and  thatthe  question, 
what  they  are  to  do  upon  contingencies  daily  pressing  upon  them,  and 
ripening  into  reality,  has  for  the  last  twelve  months  constantly  excited 
their  attention  and  stimulated  them  to  action.  Were  the  population  of 
the  island  of  one  blood  and  color,  there  could  be  no  doubt  or  hesitation 
with  regard  to  the  course  which  they  would  pursue,  as  dictated  by  their 
interests  and  their  rights ;  the  invasion  of  Spain  by  France  would  be  the 
signal  for  their  declaration  of  independence.  That  even  in  their  present 
state  it  will  be  imposed  upon  them  as  a  necessity  is  not  unlikely;  but 
among  all  their  reflecting  men  it  is  admitted,' as  a  maxim  fundamental  to 
all  deliberation  upon  their  future  condition,  that  they" are  not  competent 
to  a  system  of  permanent  self-dependence;  they  must  rely  for  the  sup])ort 
of  protection  upon  some  force  from  without ;  and  in  the  event  of  the 
overthrow  of  the  Spanish  constitution,  that  support  can  no  longer  be 
expected  from  Spain — their  only  alternative  of  dependence  must  be 
upon  Great  Britain  or  upon  the  United  States. 

"  Hitherto  the  wishes  of  this  Government  have  been  thatthe  connec- 
tion between  Cuba  and  Spain  should  continue  as  it  has  existed  for 
several  years ;  these  wishes  are  known  to  the  principal  inhabitants  of 
the  island,  and  instructions,  copies  of  which  are  now  furnished  you, 
were  some  months  since  transmitted  to  Mr.  Forsyth,  authorizing  him  in 
a  suitable  manner  to  communicate  them  to  the  Spanish  Government. 
These  wishes  still  continue,  so  far  as  they  can  be  indulged  with  a  ra- 
tional foresight  of  events  beyond  our  control,  but  for  which  it  is  our 
duty  to  be  prepared.  If  a  Government  is  to  beim[:osed  by  foreign  vio- 
lence upon  the  Spanish  nation,  and  the  liberties  which  they  have  as- 
serted by  their  constitution  are  to  be  crushed,  it  is  neither  to  be  expected 
nor  desired  that  the  people  of  Cuba,  far  from  the  reach  of  the  oppress 
ors  of  Spain,  should  submit  to  be  governed  by  them.  Should .  the 
cause  of  Spain  itself  issue  more  propitiously  than  from  its  present  pros- 
pects can  be  anticipated,  it  is  obvious  that  the  trial  through  which  she 
must  pass  at  home,  and  the  final  loss  of  ail  her  dominions  on  the  Amer 
ican  continents,  will  leave  lier  unable  to  extend  to  the  Island  of  Cuba 
that  i)rotection  necessary  for  its  internal  security  and  its  outward  de 
fense. 

"  Great  Britain  has  formally  withdrawn  from  the  councils  of  the  Eu- 
ropean alliance  in  regard  to  Spain  ;  she  disapproves  the  war  which  they 
have  sanctioned,  and  which  is  undertaken  by  France,  and  she  avows  her 
determination  to  delend  Portugal  against  the  ap})lication  of  the  prin 
ciplesupon  which  the  invasion  of  Spain  raises  its  only  pretense  of  right. 

363 


§  60.]  INTERVENTION.  [CHAP.  III. 

"  To  the  war  as  it  comnjeoces  she  has  declared  her  intention  of  re- 
maining neutral ;  but  the  spirit  of  the  British  nation  is  so  strongly  and 
with  so  mucli  unanimity  pronounced  against  France,  their  interests  are 
so  deeply  involved  in  the  issue,  their  national  resentments  and  jeal- 
ousies will  be  so  forcibly  stimulated  by  the  progress  of  the  war,  what- 
ever it  miy  be,  that,  unless  the  conflict  should  be  as  short  and  the  issue 
as  decisive  as  that  of  which  Italy  was  recently'  the  scene,  it  is  scarcely 
possible  that  the  neutrality  of  Great  Britain  should  be  long  maintained. 
The  prospect  is  that  she  will  soon  be  engaged  on  the  side  of  Spain  ;  but, 
in  making  common  cause  with  her,  it  is  not  to  be  supposed  that  she 
will  yield  her  assistance  upon  principles  altogether  disinterested  and 
gratuitous.  As  the  price  of  her  alliance,  the  two  remaining  islands  of 
Spain  in  the  West  Indies  present  objects  no  longer  of  much  possible 
value  or  benefit  to  Spain,  but  of  such  importance  to  Great  Britain  that 
it  is  impossible  to  suppose  her  indifferent  to  the  acquisition  of  them. 
The  motives  of  Great  Britain  for  desiring  the  possession  of  Cuba  are 
so  obvious,  especially  since  the  independence  of  Mexico  and  the  annexa- 
tion of  the  Floridas  to  our  Union;  the  internal  condition  of  the  island 
since  the  recent  Spanish  revolution,  and  the  possibility  of  its  continued 
dependence  upon  Spain,  have  been  so  precarious  ;  the  want  of  protec- 
tion there,  the  power  of  affording  it  possessed  by  Great  Britain,  and 
the  necessities  of  Spain,  to  secure,  by  some  equivalent,  the  support  of 
Great  Britain  for  herself,  have  formed  a  remarkable  concurrence  of  pre- 
dispositions to  the  transfer  of  Cuba,  and  during  the  last  two  years  ru- 
mors have  been  multiplied  that  it  was  already  consummated.  We  have 
been  confidently  told,  by  indirect  communication  from  the  French  Gov- 
ernment, that  more  than  two  years  since  Great  Britain  was  negotiating 
with  Spain  for  the  cession  of  Cuba,  and  so  eager  in  the  pursuit  as  to 
have  offered  Gibraltar,  and  more,  for  it  in  exchange.  There  is  reason 
to  believe  that,  in  this  respect,  the  French  Government  was  misin- 
formed ;  but  neither  is  entire  reliance  to  be  placed  on  the  declaration 
lately  made  by  the  present  British  secretary  for  foreign  affairs  to  the 
French  Government,  and  which,  with  precautions  indicating  distrust,  " 
has  been  also  confidentially  communicated  to  us,  viz,  that  Great  Britain 
would  hold  it  disgraceful  to  avail  herself  of  the  distressed  situation  of 
Spain  to  obtain  possCvSsion  of  any  portion  of  her  American  colonies. 

"The  object  of  this  declaration,  and  of  the  communication  of  it  here, 
undoubtedly  was  to  induce  the  belief  that  Great  Britain  entertained 
no  purpose  of  obtaining  the  possession  of  Cuba  ;  but  these  assurances 
were  given  with  reference  to  a  state  of  peace  then  still  existing,  and 
which  it  was  the  intention  and  hope  of  Great  Britain  to  preserve.  The 
condition  of  all  the  parties  to  them  has  since  changed,  and  however 
indisi)o.sed  the  British  Government  might  be  ungenerously  to  avail 
themselves  of  the  distress  of  Spain  to  extort  from  her  any  remnant  of 
her  former  i)ossessions,  they  did  not  forbear  to  take  advantage  of  it  by 
order  of  reprisals  given  to  two  successive  squadrons  dispatched  to  the 
364 


CHAP.  III.]  CUBA.  [§  60. 

West  Indies,  and  stationed  in  immediate  proximity  to  the  Island  of 
Cuba. 

"  By  measures  thus  vigorous  and  peremptory,  they  obtained  from 
Spain  an  immediate  revocation  of  the  blockade  which  her  generals 
had  proclaimed  on  the  coast  of  Terra  Firma,  and  ])ledges  of  repara- 
tion for  all  the  captures  of  British  vessels  made  under  cover  of  that 
military  fiction.  They  obtained  also  an  acknowledgment  of  many 
long-standing  claims  of  British  subjects  upon  the  Spanish  Government, 
and  promises  of  payment  of  them  as  a  part  of  the  national  debt.  The 
whole  amount  of  them,  however,  as  well  as  that  of  the  reparation  and 
indemnity  promised  for  the  capture  of  British  property  under  the 
blockades  of  General  Morales  and  by  the  Porto  Rico  privateers,  yet 
exists  in  the  form  of  claims ;  and  the  whole  mass  of  them  now  is  ac- 
knowledged claim,  for  the  satisfaction  of  which  pledges  have  been 
given  to  be  redeemed  hereafter ;  and  for  which  the  Island  of  Cuba  may 
be  the  only  indemnity  in  the  power  of  Spain  to  grant,  as  it  would  un- 
doubtedly be  to  Great  Britain  the  most  satisfactory  indemnity  which 
she  could  receive. 

"The  war  between  France  and  Spain  changes  so  totally  the  circum- 
stances under  which  the  declaration  above  mentioned  of  Mr.  Canning 
was  made,  that  it  may,  at  its  very  outset,  produce  events  under  which 
the  possession  of  Cuba  may  be  obtained  by  Great  Britain  without  even 
raising  a  reproach  of  intended  deception  against  the  British  Govern- 
ment for  making  it.  An  alliance  between  Great  Britain  and  Spain  may 
be  one  of  the  first  fruits  of  this  war.  A  guarantee  of  the  island  to 
Spain  may  be  among  the  stipulations  of  that  alliance;  and  in  the  event 
either  of  a  threatened  attack  upon  the  island  by  France,  or  of  attempts 
on  the  part  of  the  islanders  to  assume  their  independence,  a  resort  to 
the  temporary  occupation  of  the  Havana  by  British  forces  may  be  among 
the  probable  expedients  through  which  it  may  be  obtained,  by  concert 
between  Great  Britain  and  Spain  herself.  It  is  not  necessary  to  point 
out  the  numerous  contingencies  by  which  the  transition  from  a  tempo- 
rary and  fiduciary  occupation  to  a  permanent  and  proprietary  posses- 
sion may  be  effected. 

"The  transfer  of  Cuba  to  Great  Britain  would  be  an  event  unpropi- 
tious  to  the  interests  of  this  Union.  The  opinion  is  so  generally  enter- 
tained, that  even  the  groundless  rumors  that  it  was  about  to  be  accom- 
plished, wliich  have  spread  abroad,  and  are  still  teeming,  may  be  traced 
to  the  deep  and  almost  universal  feeling  of  aversion  to  it,  and  to  the 
alarm  which  the  mere  probability  of  its  occurrence  has  stimulated.  The 
question  both  of  our  right  and  of  our  power  to  prevent  it,  if  necessary 
by  force,  already  obtrudes  itself  upon  our  councils,  and  the  Adminis- 
tration is  called  upon,  in  the  performance  of  its  duties  to  the  nation,  at 
least,  to  use  all  the  means  within  its  competency  to  guard  against  and 
forefend  it. 

365 


§  60.]  INTERVENTION.  [CHAP.  III. 

It  will  b.'  among  the  primary  objects  requiring  your  most  earnest  and 
unremitting  attention  to  ascertain  and  report  to  us  every  movement  of 
negotiation  between  Spain  and  Great  Britain  upon  this  subject.  We 
cannot,  indeed,  prescribe  any  special  instructions  in  relation  to  it.  We 
scarcely  know  wbere  you  will  tiud  the  Government  of  Spain  ujjon  your 
arrival  in  the  country,  nor  can  we  foresee  with  certainty  by  whom  it 
will  be  administered.  Your  credentials  are  addressed  to  Ferdinand,  the 
King  of  Spain  under  the  constitution.  You  may  find  him  under  the 
guardianship  of  the  Cortes,  under  the  custody  of  an  army  of  faith,  or 
under  the  protection  of  the  invaders  of  his  country'.  So  long  as  the 
constitutional  Government  may  continue  to  be  administered  in  his  name, 
your  official  intercourse  will  be  with  his  ministers,  and  to  them  you  will 
repeat  what  Mr.  Forsyth  has  been  instructed  to  say,  that  the  wishes  of 
your  Government  are  that  Cuba  and  Porto  Eico  may  continue  in  con- 
nection with  independent  and  constitutional  Spain. 

"  You  will  add  that  no  countenance  has  been  given  by  us  to  any 
{projected  plan  of  separation  from  Spain  which  may  have  been  formed 
in  the  island.  This  assurance  becomes  proper,  as  by  a  late  dispatch 
received  from  Mr.  Forsyth  he  intimates  that  the  Spanish  Government 
have  been  informed  that  a  revolution  in  Cuba  was  secretly  preparing, 
fomented  by  communications  between  a  society  of  Freemasons  there 
and  another  of  the  same  fraternity  in  Philadelphia.  Of  this  we  have 
no  other  knowledge;  and  the  societies  of  Freemasons  in  this  country 
are  so  little  in  the  practice  of  using  agency  of  a  political  nature  on  any 
occasion,  that  we  think  it  most  probable  the  information  of  the  Spanish 
Government  in  that  respect  is  unfounded.  It  is  true  that  the  Freema- 
sons at  the  Havana  have  taken  part  of  late  in  the  politics  of  Cuba,  and, 
so  far  as  it  is  known  to  us,  it  has  been  an  earnest  and  active  part  in 
favor  of  the  continuance  of  their  connection  with  Spain.  While  dis- 
claiming all  disposition  on  our  part  either  to  obtain  possession  of  Cuba 
or  Porto  Rico  ourselves,  you  will  declare  that  the  American  Govern- 
ment had  no  knowledge  of  the  lawless  expedition  undertaken  against 
the  latter  of  those  islands  last  summer." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Nelson,  Apr.  28,  1823;  MSS.  Inst.  Ministers; 
pnblishefl  in  Br.  and  For.  St.  Pap.  (185.V'4),  vol.  44,  p.  138.  Portions  of 
these  instmctions  are  in  5  Am.  St.  Pap.  (For.  Pel.),  408. 

"  With  Europe  we  have  few  occasions  of  collision,  and  these,  with  a 
little  prudence  and  forbearance,  may  be  generally  accommodated.  Of 
the  brethren  of  our  own  liemisi)here,  none  are  yet,  or  for  an  age  to  come 
will  be,  in  a  shape,  condition,  or  dis])osition  to-war  against  us.  And 
the  foothold  which  the  nations  of  Europe  had  in  either  America  is  slip- 
ping from  under  tliem,  so  that  we  shall  .soon  be  rid  of  their  neighbor- 
hood. Cuba  alone  seems  at  present  to  hold  up  a  speck  of  war  to  us. 
Its  possession  by  Great  Britain  would  indeed  be  a  great  calamity  to  us. 
Could  we  induce  ];er  to  join  us  in  guai-antoeing  its  independence  against 
all  the  world,  excrpt  Spain,  it  would  be  nearly  as  valuable  as  if  it  were 
our  own.    But  should  she  take  it,  I  would  not  immediately  go  to  war 

366 


CHAP.  III.]  CUBA.  •  [§  GO. 

for  It ;  because  the  first  war  on  other  accounts  will  give  it  to  ns.  or  the 
iislaud  will  give  itself  tons  when  able  to  do  so.  While  no  duty,  there- 
fore, calls  on  us  to  take  i)art  in  the  present  war  of  Europe,  and  a  golden 
harvest  ofters  itself  in  reward  for  doing  nothing,  ptace  and  neutrality 
seem  to  be  our  duty  and  interest.  We  inaj  gratify  ourselves,  indeed, 
with  a  neutrality  as  partial  to  Spain  as  would  Uv  Justitiable  without  giv- 
ing cause  of  war  to  her  adversary.  We  might  and  ought  to  avail  our- 
selves of  the  happy  occasion  of  procuring  and  cementing  a  cordial  re- 
conciliation witli  her  by  giving  assurance  of  every  friendly  office  which 
neutrality  admits,  and  especially  against  all  ap])rehension  of  our  inter- 
meddling in  the  quarrel  with  her  colonies.  And  I  expect  daily  and  con- 
fidently to  hear  of  a  spark  kindled  in  France  which  ^vill  emi)loy  her  at 
home  and  relieve  Spain  from  all  further  apprehensions  of  danger." 

Mr.  Jefferson  to  President  Monroe,  June  11,  1823;  7  Jeff.  Works,  268.  For 
another  portion  of  this  letter  see  supra,  ^  45  ;  see  also  Mr.  Jefferson  to  Presi- 
dent Mouroe,  October  24,  1823,  quoted  supra,  §  hi. 

"I  had  supposed"  (when  writing  a  former  letter)  "an  English  inter- 
est there  (in  Cuba)  quite  as  strong  as  that  of  the  United  States,  and 
therefore  that  to  avoid  war  and  keep  the  island  open  to  our  own  com- 
merce, it  would  be  best  to  join  that  power  in  mutually  guaranteeing  its 
independence.  But  if  there  is  no  danger  of  its  falling  into  the  posses- 
sion of  England,  I  must  retract  an  opinion  founded  on  an  error  of  fact. 
We  are  surely  under  no  obligation  to  give  her  gratis  an  interest  which 
she  has  not;  and  the  whole  inhabitants  being  averse  to  her,  and  the 
climate  mortal  to  strangers,  its  continued  military  occupation  by  her 
would  be  impracticable.  It  is  better,  then,  to  lie  still,  in  readiness  to 
receive  that  interesting  incorporation  when  solicited  by  herself,  for  cer- 
tainl3'  her  addition  to  our  confederacy  is  exactly  what  is  wanted  to  round 
our  power  as  a  nation  to  the  point  of  its  utmost  interest." 

Mr.  Jefferson  to  Mr.  Monroe,  President,  June  23,  1823;  Monroe  Pap.,  Dep.  of 
State;  7  Jeff.  Works,  299.     See  supra,  $$  45,  57. 

Instructions  were  sent,  under  direction  of  the  President  (Mr.  J.  Q. 
Adams),  by  Mr.  Clay,  when  Secretary  of  State,  to  the  ministers  to  the 
leading  European  Governments  to  announce  "that  the  United  States, 
for  themselves,  desired  no  change  in  the  political  condition  of  Cuba ; 
that  they  were  satisfied  that  it  should  remain,  open  as  it  now  is,  to  their 
commerce,  and  that  they  could  not  with  indifference  see  it  i)assiugfrom 
Spain  to  any  (other)  European  power." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  King,  Oct.  17,  1825;  MSS.  Inst.  Ministers. 

"You  will  now  add  that  we  could  not  consent  to  the  occupation  of 
those  islands  (Cuba  and  Porto  Eico)  by  any  other  European  power  than 
Spain  under  any  contingency  whatever." 

Mr.  Clay  to  Mr.  Brown,  Oct.  2."i,  1*25;  MSS.  lust.  Miuisters. 

The  following  is  from  the  diary  of  Lord  Ellenborough,  under  date  of 
February  8,  1830,  Lord  Ellenborough  being  at  the  time  a  cabinet  minis- 
ter in  the  Duke  of  \Yellington's  admiiiistiation  : 

"  It  appears,  on  looking  over  the  papers  of  1<S25  and  1S2G,  that  so  far 
from  our  having  i)rohibited  Mexico  and  Colombia  frop  making  any  at- 
tack upon  Cuba,  we  uniformly  abstained  from  doing  anything  of  the 

367 


§  60.]  ■  INTERVENTION.  [CHAP.  III. 

kind.  The  Americans  declared  that  they  could  not  see  with  indiffer- 
enoe  any  state  other  than  S])ain  in  possession  of  Cuba,  and  further, 
their  disposition  to  interpose  their  power  should  war  be  conducted  in 
Cuba  in  a  devastating  manner,  and  with  a  view  to  the  excitement  of  a 
servile  war." 

2  Diary,  &c.,188. 

In  1825  the  British  Government  suggested  to  the  Government'3  of 
France  and  of  the  United  States  a  joint  declaration  by  the  three  Gov- 
ernments (as  an  inducement  to  Spain  to  acknowledge  South  American 
independence),  that  they  would  not  permit  Cuba  to  be  wrested  from 
Spain.  The  Government  of  the  United  States  held  this  under  advise- 
ment, and  on  France  declining,  the  proposal  was  dropped. 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Kiug,  Oct.  25, 182.5  ;  MSS.  Inst.  Ministers. 

Subsequently,  however,  the  United  States  refused  to  enter  into  any  joint  ar- 
rangements with  foreign  powers  as  to  Cuba.  See  further  instructions  in 
this  section,  and  supra,  $  $  72,  102. 

As  to  tho  attitude  that  would  be  assumed  by  the  United  States  in  case  of  the 
South  American  states,  then  at  war  with  Spain,  attacking  Cuba  and  car- 
rying on  the  war  in  a  "desolating  manner,"  see  letter  of  Mr.  Claj%Sec.  of 
State,  to  Mr.  Middleton,  Dec.  26,  1825;  MSS.  Inst.  Ministers. 

The  note  of  Mr.  A.  H.  Everett,  minister  to  Spain,  on  Jan.  20, 1826,  to  the  Span- 
ish minister  of  foreign  affairs,  will  be  found  in  House  Ex.  Doc.  No.  246,  20th 
Cong.,  Ist.  eess. 

"  If  the  acquisition  of  Cuba  were  desirable  to  the  United  States, 
there  is  believed  to  be  no  reasonable  prospect  of  eflecting,  at  this 
conjuncture,  that  object.  And  if  there  were  any,  the  frankness  of 
their  diplomacy,  which  has  induced  the  President  freely  and  fully  to  dis- 
close our  views  both  to  Great  Britain  and  France,  forbids  absolutely 
any  movement  whatever,  at  this  time,  with  such  a  purpose.  This  con- 
dition of  the  great  maritime  powers  (the  United  States,  Great  Britain, 
and  France)  is  almost  equivalent  to  an  actual  guarantee  of  the  islands 
to  Spain.  But  we  can  enter  into  no  stipulations  by  treaty  to  guarantee 
them." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  A.  H.  Everett,  Apr.  13,  1826:  MSS.  Inst.  Minis- 
ters. (See  more  fully  Mr.  Clay  to  Messrs.  Anderson  and  Sergeant,  May  8 
1826,  ihUl.) 

Mr.  (iallatin,  when  minister  at  London,  tried  "to  impress  strongly  on 
his  (Mr.  Canning's)  mind  that  it  was  impossible  that  the  United  States 
could  acquiesce  in  the  conquest  by,  or  transfer  of,  that  island  (Cuba)  to 
any  great  maritime  power." 

Mr.  Gallatin  to  Mr.  Clay,  Sec.  of  state,  Dec.  22, 1826;  2  Gallatin's  Writings,  346. 

"The  Government  has  always  looked  with  the  deepest  interest  upon 
the  fate  of  tho.>ie  islands,  but  particularly  of  Cuba.  Its  geographical 
position,  which  places  it  almost  in  sight  of  our  southern  shores,  and,  as 
it  were,  gives  it  the  command  of  the  Gulf  of  Mexico  and  the  West  In- 
dian seas,  its  safe*  and  capacious  harbors,  its  rich  productions,  the  ex- 
363 


CHAP.  III.]  CUBA. .  [§  GO. 

cbange  of  whicli  for  our  surplus  agricultural  products  and  manufactures, 
constitutes  one  of  the  most  extensive  and  valuable  bramilies  of  our  for- 
eign trade,  render  it  of  the  utmost  importance  to  the  United  States  that 
no  change  should  take  place  in  its  condition  which  might  injuriously 
affect  our  political  and  commercial  standing  in  tliat  quarter.  Other  con- 
siderations connected  with  a  certain  chiss  of  our  ))opuhition,  make  it  the 
interest  of  the  southern  section  of  th<^  Union  that  no  attempt  should  be 
made  in  that  island  to  tlirow  off  the  yoke  of  Si>anish  dependence,  the 
first  effect  of  which  would  be  the  sudden  emancipation  of  a  numerous 
slave  population,  whose  result  could  not  but  be  very  sensibly  felt  upon 
the  adjacent  shores  of  the  United  States. 

"  On  the  other  hand,  the  wisdom  which  induced  the  Spanish  Govern- 
meut  to  relax  in  its  colonial  system,  and  to  adopt  with  regard  to  those 
islands,  a  more  liberal  policy  whicli  opened  their  ports  to  general  com- 
merce, has  been  so  far  satisfactory,  in  the  view  of  the  United  States,  as, 
in  addition  to  other  considerations,  to  induce  this  Government  to  desire 
that  their  possession  should  not  be  transferred  from  the  S])auish  Crown 
to  any  other  power." 

Mr.  Van  Biireu,  Sec.  of  State,  to  Mr.  Van  Ness,  Oct.  2,  1829;  MSS.  lust. 
MiuisterH. 

See  publifiitioua  in  13r.  and  For.  St.  Pap.,  1837-'38,  vol.  2i5,  1124  ff.  inchidiog: 
Mr.  Forsyth  (Madrid)  to  Mr.  Adams  (Sec),  Nov.  20,  1822;  Mr.  Forsyth 
(Madrid)  to  Mr.  Adams  (Sec),  Dec.  1:5,  1822;  Mr.  Adams  to  Mr.  Forsyth, 
Dec.  17,  1822 ;  Mr.  Forsyth  to  Mr.  Adams,  Feb.  10,  1823 ;  Mr.  Adams  to  Mr. 
Nelson,  Apr.  28,  1823  (suggesting-  purchase  of  Cuba) ;  Mr.  Appleton  (Cadiz) 
to  Mr.  vVdaras,  July  10,  1823;  Mr.  Nelson  to  Mr.  Clay  (Sec),  July  10,  1825; 
Mr.  Clay  to  Mr.  Everett,  April  IT),  1825;  Mr.  Clay  to  Mr.  Everett,  Ai)r.  27, 
1825;  Mr.  Nelson  to  Mr.  Bermudez,  June  22,  1825;  Mr.  Beruiudez  to  Mr. 
Nelson,  July  12,  1825  (stating  that  Spain  would  not  part  with  Cuba);  Mr. 
Everett  to  Mr.  Clay,  Sept.  25, 1825 ;  Mr.  Everett  to  Mr.  Clay,  Aug.  17, 1827 ; 
the  Spanish  minister  at  London  to  the  minister  of  state,  June  1,  1827  ;  Mr. 
Everett  to  Mr.  Clay,  Dec.  12,  1827 ;  confidential  menioranilum  of  Mr.  Everett 
for  the  Spanish  seci'etary  of  state,  Dec.  10,  1827,  stating,  among  other 
things,  that  the  Government  of  "  His  Catholic  Majesty  cannot  be  ignorant 
of  the  movements  commenced  a  few  months  ago  by  the  British  ministry, 
in  conjunction  with  the  Spanish  refugees  in  London,  and  now  in  the  course 
of  execution,  for  the  purpose  of  revolutionizing  the  Island  of  Cuba  and 
the  Canaries,"  saying  that  the  United  States  would  not  consent  to  Cuba 
passing  to  any  third  power,  and  com])Iaining  of  discrimination  against  tho 
United  States;  Mr.  Van  Buren  (Sec),  to  Mr.  Van  Ness  (Madrid),  Oct.  2, 
1829,  taking  the  same  position  as  lo  transfer  of  Culia  to  another  power ;  Mr. 
Van  Buren  to  Mr.  Van  Ness,  Oct.  13,  1830,  saying  that  "  the  President  does 
not  see  on  what  ground  he  would  be  justified  in  interfering  with  any 
attempts  which  the  South  American  states  might  think  it  for  their  interest, 
in  the  prosecution  of  a  defensive  war,  to  make  upon  the  island  in  question  "; 
Mr.  Van  Ness  (Madrid)  to  Mr.  Forsyth  (Sec),  Aug.  16,  1836,  speaking  of 
rumors  of  disquiet  in  Cuba;  Mr.  Van  Ness  to  Mr.  Forsyth,  Dec.  10,  1836, 
as  to  the  etiect  of  Spanish  political  changes  on  Cuba;  Mr.  Stf^veuson  (Lou- 
don) to  Mr.  Forsyth,  June  16,  1839,  as  to  conversation  with  Lord  Palmer- 
ston,  Mr.  S.  protesting  against  foreign  interference  in  Cuba;  Mr.  Eaton 
(Madrid)  to  Mr.  Forsyth,  Aug.  10,  1837,  stating  that  Mr.  Villiers,  British 
minister  in  Spain,  disclaimed  the  idea  of  Great  Britain  taking  Cuba. 

S.  Mis.  1C2— VOL.  I 24  369 


§  60.]  INTERVENTION.  [CHAP.  III. 

"If,  indeed,  an  attempt  should  be  made  to  disturb  them  [the  S]ninish 
West  Indies]  by  i)utting  arms  in  the  hands  of  one  portion  of  their  ])op- 
uhition  to  destroy  another,  and  which,  in  its  influence,  would  endanger 
the  peace  of  a  portion  of  the  United  States,  the  case  might  be  ditferent. 
Against  such  an  attempt  the  United  States  (being  informed  that  it  was 
in  contemplation)  have  already  protested,  and  warmly  remonstrnted  in 
their  communications,  last  summer,  with  the  Government  of  Mexico. 
But  the  information  lately  communicated  to  us,  in  this  regard,  was 
accompanied  by  a  solemn  assurance  that  no  such  measures  will,  in  any 
event,  be  resorted  to ;  and  that  the  contest,  if  forced  upon  them,  will 
be  carried  on,  on  their  part,  with  strict  reference  to  the  established 
rules  of  civilized  warfare." 

Mr.  Van   Biiren,  Sec.   of  State,  to   Mr.  Van  Ness,  Oct.   13,   1830;  MSS.  Inst. 

Ministers. 
The  correspondence  in  reference  to  the  quintuple  treaty  of  1842  is  given  in 

Senate  Doc.  No.  223,  27th  Cong.,  3d  sess. 
As  to  policy  of  the  United  States  in  respect  to  Cuba,  see  further,  Brit,  and  For. 
St.  Pap.  for  1843-'4,  vol.  32,  861. 

"A  communication  from  a  highly  respectable  source  has  just  been  re- 
ceived at  this  Department,  which  purports  to  contain  information  of  so 
serious  a  nature  in  regard  to  the  present  condition  of  the  Island  of 
Cuba,  that  the  President  has  come  to  the  conclusion  that  it  is  expedient 
to  lose  no  time  in  ascertaining,  if  practicable,  how  far  the  real  facts  of 
the  case  may  correspond  with  the  representations.  The  name  of  the  in- 
dividual from  which  these  accounts  have  come  is,  for  good  reasons,  with- 
held. It  is  sufficient  to  say  that  they  come  from  the  island,  and  have 
been  transmitted  from  thence  by  a  person  of  high  standing,  whose  state- 
ments, as  we  are  told  by  those  who  know  the  source,  are  believed  to  be 
entitled  to  as  much  consideration  as  those  of  any  individual  in  Cuba. 

"Acting  under  this  belief,  and  influenced  by  the  consideration  that  this 
Government  has  frequently  received  intimations  from  various  quarters 
in  regard  to  Cuba  which  give  a  color  of  probability  to  the  statements 
which  have  thus  been  recently  received,  the  President  has  instructed 
me  to  make  this  communication  to  you,  to  call  your  attention  to  the 
matter,  and  to  desire  you  to  transmit  all  the  information  you  possess  or 
can  obtain  in  regard  to  it. 

"  The  necessity  of  absolute  secrecy  in  everything  that  relates  to  the  in- 
quiries you  are  directed  to  make,  and  in  the  transmission  of  their  result 
to  your  Government,  has  obliged  us  to  send  to  Havana  a  special  mes- 
senger, who  will  take  charge  of  and  deliver  to  you  in  person  this  letter, 
and  who  will  be  directed  to  remain  with  you  for  some  short  time  to 
afford  you  opportunity  to  prepare  a  reply,  and  to  impart  all  the  intelli- 
gence which  may  be  within  your  reach. 

"  It  is  proper,  however,  to  apprise  you  that  it  is  highly  desirable  that 
there  should  be  as  little  detention  as  possible,  as  the  President  is  ex- 
370 


CHAP.  III.]  CUBA.  [$  60. 

ceedingly  anxious  to  be  well  informed  upon  the  subject  at  the  earliest 
practicable  moment. 

'•  Tlie  messenger  is  unacquainted  with  the  contents  of  this  letter,  and 
it  is  not  necessary  or  desirable  that  the  subject  of  this  correspondence 
should  be  in  any  way  made  known  to  him.  The  amount  of  the  informa- 
tion which  has  been  received  is  this:  The  writer  represents  himself  as 
bound  in  honor  not  to  reveal  what  he  has  made  known  to  his  corre- 
spondent in  the  United  States  to  the  local  authorities  of  Cuba,  for  rea- 
sons which  can  only  be  guessed  at. 

"  His  statements,  confirmed  as  they  appear  to  be  in  some  particulars 
by  various  recent  occurrences  of  a  public  character  with  which  you 
cannot  but  be  familiar,  are  considered  as  entitled  at  least  to  serious 
attention,  and  to  call  for  immediate  examination  and  reply. 

"  It  is  rei)resented  that  the  situation  of  Cuba  is  at  this  moment  in  the 
highest  degree  dangerous  and  critical,  and  that  Great  Britain  has  re- 
solved upon  its  ruin;  that  Spain  does  not  or  will  not  see  this  intention, 
and  that  the  authorities  of  the  island  are  utterly  incompetent  to  meet 
the  crisis;  that,  although,  according  to  the  treaty  of  1817,  the  slave- 
trade  ought  not  to  have  been  carried  on  by  any  subject  of  Spain,  it  has 
nevertheless  been  continued  in  full  vigor  up  to  the  year  1841,  notwith- 
standing the  incessant  remonstrances  of  the  British  Government,  which 
was  better  informed,  it  is  said,  from  month  to  month,  of  everything 
that  took  place  in  the  island  than  the  captain- general  himself.  It  is 
alleged  that  the  British  ministry  and  abolition  societies,  finding  them- 
selves foiled  or  eluded  by  the  colonial  and  home  governments,  have 
therefore  resolved,  not  perhaps  without  secretly  congratulating  them- 
selves upon  the  obstinacy  of  Spain,  upon  accomplishing  their  object  in 
a  different  method,  by  the  total  and  immediate  ruin  of  the  island.  Their 
agents  are  said  to  be  now  there  in  great  numbers,  offering  independ- 
ence to  the  Creoles,  on  condition  that  they  will  unite  with  the  colored 
people  in  effecting  a  general  emancipation  of  the  slaves,  and  in  con- 
verting the  Government  into  a  black  military  Republic,  under  British 
protection.  The  British  abolitionists  reckon  on  the  naval  force  of  their 
Government,  stationed  at  Jamaica  and  elsewhere,  and  are  said  to  have . 
offered  two  large  steam  ships-of-war,  and  to  have  proposed  to  the  Vene- 
zuelan general.  Merino,  who  resides  at  Kingston,  Jamaica,  to  take  the 
conmiand  of  the  invading  army.  This  is  to  be  seconded,  as  is  suggested, 
by  an  insurrection  of  the  slaves  and  free  men  of  color,  snpi»orted  by  the 
white  Creoles. 

"If  this  scheme  should  succeed,  the  influence  of  Britain  in  this  quar- 
ter, it  is  remarked,  will  be  unhmited.  With  000,000  blacks  in  Cuba 
and  800,000  in  her  West  India  Islands,  she  will,  it  is  said,  strike  a 
death-blow  at  the  existence  of  slavery  in  the  United  States.  Intrenched 
at  Havana  and  San  Antonio,  ports  as  impregnable  as  the  rock  of  Gib- 
raltar, she  will  be  able  to  close  the  two  entrances  to  the  Gulf  of  Mexico, 

371 


§  60.]  INTERVENTION.  [CHAP.  III. 

and  even  to  prevent  tbe  free  passage  of  the  commerce  of  the  United 
States  over  the  Bahama  Banks  and  through  the  Florida  Channel. 

"The  local  authorities  are  believed  not  to  be  entirely  ignorant  of  the 
perils  which  environ  them,  but  are  regarded  as  so  torpid  as  not  to  be 
competent  to  understand  the  extent  and  imminency  of  those  perils,  nor 
the  policy  by  which  Great  Britain  is  guided. 

"  The  wealthy  planters  are  described  as  equally  blind  to  the  great 
danger  in  which  they  stand  of  losing  their  property.  They  go  on,  it  is 
said,  as  usual,  buying  negroes,  clamoring  for  the  continuation  of  the 
trade,  and  denouncing  as  seditious  persons  and  friends  of  Great  Britain, 
the  few  who  resist  the  importation  of  slaves  and  encourage  the  immi- 
gration of  free  whites. 

"  The  writer  points  to  the  census  of  the  population  of  the  island, 
taken  by  authority,  and  just  published,  of  which  he  incloses  a  copy; 
and  from  the  proportion  between  the  dilferent  colors  he  infers  the  prob- 
ability that  the  white  Creoles  will  be  able  to  preserve  their  rights  in  the 
future  Etliiopico-Cuban  Republic;  and  as  to  the  Spaniards,  he  presumes 
they  will  leave  the  island  at  once.  The  writer  very  naturally  supposes 
that  the  United  States  must  feel  a  deep  solicitude  upon  a  subject  which 
so  nearly  concerns  their  own  interests  and  tranquillity.  He  seems  anx- 
ious that  public  opinion  in  this  country  should  be  formed  upon  it,  and 
properly  directed,  and  does  not  hesitate  to  express  the  opinion  that  the 
mass  of  the  white  population  in  Cuba,  in  easy  circumstances,  including 
the  Spaniards,  prefer,  and  will  always  prefer,  the  flag  of  the  United 
States  to  that  of  England. 

"  In  thus  communicating  to  you  the  substance  of  the  statements  of 
this  writer,  you  will  distinctly  understand  that  your  Government  neither 
adopts  nor  rejects  his  speculations.  It  is  with  his  statement  of  supposed 
facts  that  it  concerns  itself;  and  it  is  expected  that  you  will  examine 
and  report  upon  them  with  scrupulous  care,  and  with  as  much  prompt- 
ness as  strict  secrecy  and  discretion  will  permit ;  and  the  whole  of  the 
statements  is  now  imparted  to  you,  not  to  limit,  but  to  guide  and  direct 
the  inquiries  you  are  called  upon  to  make  in  so  delicate  a  matter.  It  is 
quite  obvious  that  any  attempt  on  the  part  of  England  to  emploj^  force 
in  Cuba,  for  any  purpose,  would  bring  on  a  war,  involving,  possibly,  all 
Europe,  as  well  as  the  United  States  ;  and  as  she  can  hardly  fail  to  see 
this,  and  probably  does  not  desire  it,  there  may  be  reason  to  doubt  the 
accuracy  of  the  information  we  have  received  to  the  extent  t3  which 
it  proceeds.  But  many  causes  of  excitement  and  alarm  exist,  and  the 
great  magnitude  of  the  subject  makes  it  the  duty  of  the  Government 
of  the  United  States  to  disregard  no  intimations  of  such  intended  pro- 
ceedings which  bear  the  least  aspect  of  ])robability.  The  Si)anish  Gov- 
ernment has  long  been  in  possession  of  the  policy  and  wishes  of  this 
Government  in  regard  to  Cuba,  which  have  never  changed,  and  has 
repeatedly  been  told  that  the  United  States  never  would  permit  the 
occupation  of  that  island  by  British  agents  or  forces  upon  any  pretext 
372 


CHAP.  III.]  CUBA.  [§  60. 

whatever ;  and  that  ia  the  event  of  any  attempt  to  wrest  it  from  her, 
she  might  securely  rely  upon  the  whole  naval  and  military  resources  of 
this  country  to  aid  her  in  preserving  or  recovering  it. 

"  A  copy  of  this  letter  will  be  immediately  transmitted  to  the  Ameri- 
can minister  at  Madrid,  that  he  may  make  such  use  of  the  information 
it  contains  as  circumstances  may  appear  to  require." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Ciimpbell,  Jan.  14,  1843;  MSS.  lust.  Consuls; 
republished  in  Br.  and  For.  State  Pap.  (185:i-'54)  vol.  44,  p.  174. 

The  United  States  will  resist  at  every  hazard  an  attempt  of  any  for- 
eign power  to  wrest  Cuba  from  Spain.  "  And  jou  are  authorized  to 
assure  the  Spanish  Government  that  in  case  of  any  attempt,  from  what- 
ever quarter,  to  wrest  from  her  this  portion  of  her  territory,  she  may 
securely  depend  upon  the  military  and  naval  resources  of  the  United 
States  to  aid  her  in  preserving  or  recovering  it." 

Mr,  Forsyth,  Sec.  of  State,  to  Mr.  Vail,  July  15,  1840;  MSS.  Inst.,  Spain. 

To  same  effect,  Mr.  Upshur,  Sec.  of  State,  to  Mr.  Irving,  Oct.  10,  184:^,  ibid. ;  Mr. 

Buchanan,  Sec.  of  State,  to  Mr.  Saunders,  June  13,  1847,  ibid. ;  same  to  same, 

June  17,  1848,  ibid. 

The  United  States  .will  not  tolerate  any  invasions  of  Ciibii  bv  v-itizens 
of  neutral  States. 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Saunders,  June  13,  1847  :    M  »s.  Tusf.,  Spain. 

For  reasons  why  the  annexation  of  Cuba  to  the  United  States  would  be  benefi- 
cial to  the  United  States,  Cuba,  and  Spaiu,  see  Mr.  Buchanan,  Sec.  of 
State,  to  Mr,  Saunders,  June  17,  1848;  MSS.  Inst.,  Spain. 

"As  to  the  purchase  of  Cuba  from  Spain,  we  do  not  desire  to  renew 
the  proposition  made  by  the  late  Administration  on  this  subject.  It  is 
understood  that  the  proposition  made  by  our  late  minister  at  Madrid, 
under  instructions  from  this  Department,  or  from  the  late  President  of 
the  United  States,  was  considered  by  the  Spanish  ministry  as  a  na- 
tional indignity,  and  that  the  sentiment  of  the  ministry  was  responded 
to  by  the  Cortes.  After  all  that  has  occurred,  should  Spain  desire  to 
part  with  the  island,  the  proposition  for  its  cession  to  us  should  come 
from  her;  and  in  case  she  should  make  auy,  you  will  content  yourself 
with  transmitting  the  same  to  your  Government  for  consideration." 

Mr,  Clayton,  Sec,  of  State,  to  Mr,  Barringer,  Aug.  2,  1849;  MSS.  Inst.,  Spain. 

"Mr.  Rives  writes  that  a  treaty  has  been  entered  into  between  France, 
Spain,  and  Great  Britain  to  guarantee  Cuba  to  Spaiu,  but  does  not  send 
it,  or  its  contents  or  date.  The  English  charg6  gives  us  notice  that 
England  has  ordered  her  vessels  to  protect  Cuba  against  the  unlawful 
invasion  from  this  country,  but  says  he  knows  of  no  treaty.  Mr.  Rives 
has  been  written  to  for  further  information.  It  a])pears  to  me  that  such 
a  step  on  the  part  of  Great  Britain  is  ill  advised;  and  if  the  attempts 
upon  Cuba  shall  be  resumed  (which  I  trust  they  will  not  be)  any  at- 
tempt to  prevent  such  expeditions  by  British  cruisers  must  necessarily 

373 


§  60.]  INTERVENTION.  [CHAP.  III. 

involve  a  right  of  search  into  our  whole  mercantile  marine  in  those  seas, 
to  ascertain  who  ought  to  be  arrested  and  who  ought  to  pass ;  and  this 
would  be  extremely  annoying,  and  well  calculated  to  disturb  the 
friendly  relations  now  existing  between  the  two  Governments." 

President  Fillmore  to  Mr.  Webster,  Sec.  of  State,  Wasbingtou,  Oct.  2,  1851;  2 
Curtis'  Life  of  Webster,  p.  551. 

"The  information  communicated  by  Mr.  Eives,  if  true,  may  become 
important ;  but  we  must  wait  to  learn  its  particulars.  I  doubt  exceed- 
ingly whether  the  English  Government  would  do  so  rash  a  thing  as  to 
interfere  with  American  vessels  on  the  seas,  under  pretense  of  their  con- 
taining Cuban  invaders.  This  could  never  be  submitted  to.  I  do  not 
think  that  any  attempt  is  likely  to  be  made  at  present  by  these  lawless 
Ijeople,  as  I  do  not  see  where  they  can  now  raise  the  funds,  and,  there- 
fore, I  hope  we  may  have  no  more  trouble.  If  an  official  communica- 
tion be  made  to  us  of  such  a  treaty  as  Mr.  Eives  supposes  may  have 
been  entered  into  it  will  deserve  close  consideration.  We  must  look 
to  our  own  antecedents.  In  General  Jackson's  time  it  was  intimated 
to  Spain,  by  our  Government,  that  if  she  would  not  cede  Cuba  to  any 
European  power  we  would  assist  her  in  maintai^iiug  possession  of  it. 
A  lively  fear  existed  at  that  time  that  England  had  designs  upon  the 
island.  The  same  intimation  was  given  to  Spain,  through  Mr.  Irving, 
when  I  was  formerly  in  the  Department  of  State.  Mr.  J.  Quincy  Adams 
often  said  that,  if  necessary,  we  ought  to  make  war  with  England 
sooner  than  to  acquiesce  in  her  acquisition  of  Cuba.  It  is  indeed  ob- 
vious enough  what  danger  there  would  be  to  us  if  a  great  naval  power 
were  to  possess  this  key  to  the  Gulf  of  Mexico  and  the  Caribbean  Sea. 
Before  receiving  your  letter  I  had  made  up  my  mind  that  if  this  matter 
of  the  treaty  between  England  and  France  should  be  announced  to  us, 
and  should  seem  to  require  immediate  attention,  I  would  hasten  to 
Washington." 

Mr.  Webster,  Sec.  of  State,  to  President  Fillmore,  Marshfield,  Oct.  4,  1851 ;  2 
Curtis'  Life  of  Webster,  551. 

For  an  account  of  the  application  of  the  doctrine  of  intervention  to  the  West 
Indies  by  European  i)o\vers,  and  of  the  position  of  the  United  States,  see 
1  Phillimore  Int.  Law,  3ed.,  600. 

For  Mr.  Fillmore's  course  as  to  neutralitj' in  respect  to  Cuba,  see  Doc.  No.  41, 
31st  Cong.,  2d  Sess. 

Reports  made  by  heads  of  Departments  on  June  3  and  June  19,  1851,  on  revolu- 
tionary movements  in  Cuba,  will  bo  found  in  Senate  Ex.  Doc.  No.  .57,  Slst 
Cong.,  1st  Sess. 

'•  The  geographical  position  of  the  Island  of  Cuba,  in  the  Gulf  of  Mex- 
ico, lying  at  no  great  distance  from  the  mouth  of  the  river  Mississippi, 
and  in  the  line  of  the  greatest  current  of  the  commerce  of  the  United 
States,  would  become,  in  the  hands  of  any  i)owerful  European  nation, 
an  object  of  just  jealousy  and  apprehension  to  the  people  of  this  coun- 
try. A  due  regard  to  their  own  safety  and  interest  must  therefore 
374 


CHAP.  III.]  CUBA.  [§  60. 

make  it  a  matter  of  importance  to  them  who  shall  possess  and  hold 
dominion  over  that  island.  The  Government  of  France  and  those  of 
other  European  nations  were  long  since  officially  apprised  by  this  Gov- 
ernment that  the  United  States  could  not  see  without  concern  that 
island  transferred  by  Spain  to  any  other  European  State." 

Mr.  Crittenden,  Acting  Sec.  of  State,  to  Mr.  Sartigee,  Oct.  2i,  1S.>1.    MSS.  Notes, 
France. 

Joint  directions  by  the  Governments  of  Franceand  of  England  totheir 
ships  of  war  to  aid  Spain  in  preventing  by  force  adventurers  of  any  na- 
tion Irom  landing  with  hostile  intent  on  the  Island  of  Cuba  cannot  but 
be  regarded  by  the  United  States  with  grave  disai)proval,  as  involving 
on  the  part  of  European  sovereigns  combined  action  of  protectorship 
over  American  waters 

Mr.  Crittenden,  Acting  Sec.  of  State,  to  Mr.  Sartiges,  Oct.  22, 1851.    MSS.  Notes, 
France.    See  Mr.  Webster,  Sec.  of  State,  to  Mr.  Sartiges,  Apr.  29,  1852,  ibid. 

Mr.  Webster,  in  his  letter  of  April  29,  1852,  to  Count  Sartiges,  took 
the  position  that  "  if  Spain  should  refrain  from  a  voluntary  cession  of 
the  island  (of  Cuba)  to  any  other  European  power  she  might  rely  on 
the  countenance  and  friendship  of  the  United  States  to  assist  her  in  the 
defense  and  preservation  of  that  island."  This,  so  far  as  it  implied  a 
guarantee  against  insurrection  (in  which  sense  it  was  interpreted  by 
Count  Sartiges  in  his  letter  of  July  5,  1852,)  was  disclaimed  by  Mr.  Ev- 
erett, who  succeeded  Mr.  Webster  as  Secretary  after  the  hitter's  death. 

See  review  of  the  correspondence  by   Mr.  Trescot,  South.  Quar.  Rev.,  April, 
1854 ;  and  see,  also,  infra,  §,  72. 

"  The  colonies  of  Spain  are  near  to  our  own  shores.  Our  commerce 
with  them  is  large  and  important,  and  the  records  of  the  diplomatic 
intercourse  between  the  two  countries  will  manifest  to  Her  Catholic 
Majesty's  Government  how  sincerely  aud  how  steadily  the  United  States 
has  manifested  the  hope  that  no  political  changes  might  lead  to  a  trans- 
fer of  these  colonies  from  Her  Majesty's  Crown.  If  there  is  one  among 
the  existing  Governments  of  the  civilized  world  which  for  a  long  course 
of  years  has  diligently  sought  to  maintain  amicable  relations  with 
Spain  it  is  the  Government  of  the  United  States.  Not  only  does  the 
correspondence  between  the  two  Governments  show  this,  but  the  same 
truth  is  established  by  the  history  of  the  legislation  of  this  country  and 
the  general  course  of  the  executive  government.  In  this  recent  inva- 
sion, Lopez  and  his  fellow  subjects  in  the  United  States  succeeded  in 
deluding  a  few  hundred  men  by  a  long-continued  and  systematic 
misrepresentation  of  the  political  condition  of  the  island  and  of  the 
wishes  of  its  inhabitants.  And  it  is  not  for  the  purpose  of  reviewing 
unpleasant  recollections  that  Her  Majesty's  Government  is  reminded 
that  it  is  not  many  years  since  the  commerce  of  the  United  States 
suffered  severely  from  armed  boats  and  vessels  which  found  refuge 
and  shelter  in  the  ports  of  the  Spanish  islands.  These  violators  of 
the  law,  these  authors  of  gross  violence  towards  the  citizens  of  this 
Kepublic,  were  finally  suppressed,  not  by  any  effort  of  the  Spanish  au- 

375 


§  60.]  INTERVENTION.  [CHAP.  lU. 

tliorities,  but  by  the  activity  and  vigilauce  of  our  Navy.  This,  how- 
ever, was  not  accomplished  but  by  the  efforts  of  several  years,  nor 
until  many  valuable  lives,  as  well  as  a  vast  amount  of  property,  had 
been  lost.  Among  others,  Lieutenant  Allen,  a  very  valuable  and  dis- 
tinguished officer  in  the  naval  service  of  the  United  States,  was  killed 
in  an  action  with  these  banditti. 

Mr.  Webster,   Sec.   of    State,    to  Mr.  Barriiiger,   Nov.  26,   1851.     MSS.  Inst. 

Spain. 
To  the  same  effect  see  (J  Webster's  Works,  573,  ff.\    2  Curtis's  Life  of  Webster, 

557.     As  to  such  intercession,  see  supra,  §  52. 

"There  is  no  doubt  that  Lord  Malmesbury  has  justly  described  the 
course  of  policy  which  has  influenced  the  Government  of  the  United 
States  heretofore  in  regard  to  the  Island  of  Cuba.  It  has  been  stated 
and  often  repeated  to  the  Government  of  Spain  by  this  Government, 
under  various  Administrations,  not  only  that  the  United  States  have 
no  design  upon  Cuba  themselves,  but  that  if  Spain  should  refrain  from 
a  voluntary  cession  of  the  island  to  any  other  European  power  she 
might  rely  on  the  countenance  and  friendship  of  the  United  States  to 
assist  her  in  the  defense  and  preservation  of  that  island.  At  the  same 
time  it  has  always  been  declare<l  to  Spain  that  the  Government  of  the 
United  States  could  not  be  expected  to  acquiesce  iu  the  cession  of  Cuba 
to  an  European  i)ower.  The  undersigned  is  happy  in  being  able  to  say 
that  the  present  Executive  of  the  United  States  entirely  approves  of 
this  past  policy  of  the  Government,  and  fully  concurs  in  the  general 
sentiments  expressed  by  Lord  Malmesbury,  and  understood  to  be  iden- 
tical with  those  entertained  by  the  Government  of  France.  The  Pres- 
ident will  take  Mr.  Cramptou's  communication  into  consideration  and 
give  it  his  best  reflections.  But  the  undersigned  deems  it  his  duty  at 
the  same  tin^e  to  remind  Mr.  Crampton,  and  through  him  his  Govern- 
ment, that  the  policy  of  that  of  the  United  States  has  uniformly  been 
to  avoid  as  far  as  possible  alliances  or  agreements  with  other  states, 
and  to  keep  itself  free  from  national  obligdtious,  except  such  as  affect 
directly  the  interests  of  the  United  States  themselves." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Crauipton,  Apr.  29,  1852.      MSS.  Notes,  Gr. 

Brit.     See  Mr.  Webster,  Sec.  of  State,  to  Mr.  Sartiges,  Apr.  29,  1852.     MSS. 

Notes,  France. 
Mr.  Fillmore's  message  of  .Inly  1:3,  1852,  and  the  accompanying  documents,  are 

in  House  Ex.  Doc.  No.  121,  31  st  Cong.,  1st  sess. 

"The  United  States,  on  the  other  hand,  would,  by  the  proposed  con- 
vention, disable  themselves  from  making  an  acquisition  which  might 
take  place  without  any  disturbance  of  existing  foreign  relations  and 
in  the  natural  order  of  things.  The  Lslantl  of  Cuba  lies  at  our  doors. 
It  commands  th»^  ajiproach  to  the  Gulf  of  Mexico,  which  wa.shes  the 
shores  of  five  of  our  States.  It  bars  the  entrance  of  that  great  river 
which  drains  half  the  Xorth  American  continent,  and  with  its  tributa- 
ries forms  the  largest  system  of  internal  water  communication  in  the 
376 


CHAP.  III. J  CUBA.  [§  60. 

world.  It  keeps  watcli  at  the  doorway  of  our  intercourse  with  Califor- 
nia, by  the  Isthmus  route.  If  an  islaiul  like  Cuba,  belonftinff  to  the 
Spauish  Crown,  gii'ml<iil  the  entrance  of  the  Thames  and  the  Seine,  and 
the  United  States  should  proi)ose  a  convention  like  this  to  France  and 
En^dand,  those  powers  wouhl  assuredly  feel  that  the  disability  assumed 
by  ourselves  was  far  less  seiious  than  that  which  we  asked  them  to  as- 
sume. The  opiuious  of  American  statesmen,  at  difterenL  times  aud 
under  varying"  circumstances,  have  difl'ered  as  to  the  desirableness  of 
the  acquisition  of  Cuba  by  the  United  States.  Territorially  and  com- 
mercially it  would  in  our  hands  be  an  extremely  valuable  possession. 
Under  certain  contingeucies  it  inight  be  almost  essential  to  our  safety. 
Still  for  domestic  reasons,  on  which  in  a  communi(;ation  of  this  kind 
it  might  not  be  proper  to  dwell,  the  President  thinks  that  the  incorpo- 
ration of  the  island  into  the  Union  at  the  present  time,  although  ef- 
fected with  the  consent  of  Spain,  would  be  a  hazardous  measure;  and 
he  would  consider  its  acquisition  by  force,  except  iu  a  just  war  with 
Spain,  should  an  event  so  greatly  to  be  deprecated  take  place,  as  a  dis- 
grace to  the  civilization  of  the  age." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Crampton,  Dec.  1,  1852.  MSS.  No.es  Gr. 
Brit.  See  Mr.  Everett  aud  the  Cuban  Question,  by  Mr.  Trescot,  9  South, 
Quar.  Rev.,  uew  series,  Apr.,  1854,  429.  For  Mr.  Everett's  views  in  full, 
see  infra,  §  72. 

To  enter  into  a  compact  with  European  powers  to  the  effect  that  the 
United  States,  as  well  as  the  other  contracting  powers,  would  disclaim 
all  intention,  now  or  hereafter,  to  obtain  possession  of  Cuba,  would  be 
inconsistent  with  the  principles,  the  policy,  aud  the  traditions  of  the 
United  States. 

.Mr.  Everett,  Sec.  of  State,  to  Mr.  Cr.impton,  Dec.  3,  1852  ;  MSS.  Notes,  Gr.  Brit., 
infra,  ^  72. 

"  The  affairs  of  Cuba  formed  a  prominent  topic  in  my  last  annual  mes- 
sage. They  remain  in  an  uneasy  condition,  and  a  feeling  of  alarm  and 
irritation  on  the  j^art  of  the  Cuban  authorities  appears  to  exist.  This 
feeling  has  interfered  with  the  regular  commenual  intercourse  between 
the  United  States  aud  the  island,  and  led  to  some  acts  of  which  we 
have  a  right  to  com])lain.  But  the  captain-general  of  Cuba  is  clothed 
with  no  power  to  treat  with  foreign  Governments,  nor  is  he  iu  any  degree 
under  the  control  of  the  Si)auish  minister  at  Washington.  Any  com- 
munication which  he  may  hold  with  an  agent  of  a  foreign  power  is  in- 
formal and  a  matter  of  courtesy.  Anxious  to  put  an  end  to  the  existing 
inconveniences  (which  seemed  to  rest  on  a  misconception),  I  directed  the 
newly  ai)poiuted  minister  to  Mexico  to  visit  Havana,  on  his  way  to 
Vera  Cruz.  He  was  respectfully  received  by  the  captain-general,  who 
conferred  with  him  freely  on  the  recent  occurrences,  but  no  permanent 
arrangement  was  effected.  In  the  m(^an  time  the  refusal  of  the  cap- 
tain-general to  allow  passengers  aud  the  mail  to  be  landed  in  certain 

377 


§  60.]  INTERVENTION.  [CHAP.  III. 

cases,  for  a  reason  which  does  not  furnish,  in  the  opinion  of  this  Gov- 
ernment, even  a  j^i'ood  presumptive  ground  for  such  a  prohibition,  has 
been  made  the  subject  of  a  serious  remonstrance  at  Madrid;  and  1  have 
no  reason  to  doubt  that  due  resj)ect  will  be  paid  by  the  Goveinment  of 
His  Catholic  Majesty  to  the  representations  which  our  minister  has  been 
instructed  to  make  on  the  subject. 

"  It  is  but  justice  to  the  ca[)tain-general  to  add  that  his  conduct  to- 
ward the  steamers  employed  to  carry  the  mails  of  the  United  States  to 
Havana  has,  with  the  exceptions  above  alluded  to,  been  marked  with 
kindness  and  liberality,  and  indicates  no  general  purpose  of  interfering 
with  the  commercial  corresponcjje'hce  and  intercourse  between  the  island 
and  this  country. 

"  Early  in  the  i)resent  year  official  notes  wt^re  received  from  the  min- 
isters of  France  and  England  inviting  the  Government  of  the  United 
States  to  become  a  party  with  Great  Britain  and  France  to  a  tripartite 
convention,  in  virtue  of  which  the  three  powers  should  severally  and 
collectively  disclaim,  now  and  for  the  future,  all  intention  to  obtain  pos- 
session of  the  Island  of  Cuba,  and  should  bind  themselves  to  discoun- 
tenance all  attempts  to  that  effect  on  the  ])art  of  any  power  or  indi- 
vidual whatever.  This  invitation  has  been  respectfully  declined,  for 
reasons  which  would  occupy  too  much  sj)ace  in  this  communication  to 
state  in  detail,  but  which  led  me  to  think  that  the  proposed  measure 
would  be  of  doubtful  constitutionality,  impolitic,  and  unavailing.  I 
have,  however,  in  common  with  several  of  wy  predecessors,  directed 
the  ministers  of  France  and  England  to  be  assured  that  the  United 
States  entertain  no  designs  against  Cuba,  but  that,  on  the  contrary,  I 
should  regard  its  incorporation  into  the  Union  at  the  present  time  as 
fraught  with  serious  peril. 

"  Were  this  island  comparatively  destitute  of  inhabitants,  or  occupied 
by  a  kindred  race,  I  should  regard  it,  if  voluntarily  conceded  by  Spain, 
as  a  most  desirable  acquisition;  but  under  existing  circumstances  I 
should  look  upon  its  incorijoration  into  our  Union  as  a  very  hazardous 
measure.  It  would  bring  into  the  confederacy  a  population  of  a  differ- 
ent national  stock,  speaking  a  different  language,  and  not  likely  to  har- 
monize with  the  other  members.  It  would  j)robably  affect  in  a  prejudi- 
cial manner  the  industrial  interests  of  the  South;  and  it  might  revive 
those  conflicts  of  opinion  which  lately  shook  the  Union  to  its  center, 
and  which  have  been  so  happily  compromised." 
President  Fillmore,  Third  Animal  Message,  1852. 

"  I  transmit  yon  a  document  printed  by  order  of  the  House  of  Repre- 
sentatives" (not,  however,  referred  to  by  number)  ''which  will  acquaint 
you  with  the  steps  taken  by  France,  England,  and  the  United  States 
to  preserve  the  tranquillity  and  integrity  of  the  eastern  portion  of  the 
island  of  San  1  )omingo.  The  j/olicy  pursued  by  the  United  States  in 
this  respect  has  been  wholly  disinterested.  It  has  been,  no  doubt,  in 
378 


CHAP.  III.]  CUBA.  [§  60. 

our  power  to  obtain  a  permanent  footliold  in  Doniiniea;  and  we  have 
as  niucb  need  of  a  uaval  station  at  Saraaiia  as  any  European  ])()\ver 
could  possibly  have.  It  has,  however,  been  the  steady  rule  of  our  ]»ol- 
icy  to  avoid,  as  far  as  possible,  all  disturbance  of  the  existing  political 
relations  of  the  West  Indies.  We  have  felt  that  any  attempts  on  the 
part  of  any  one  of  the  great  maritime  powers  to  obtain  exclusive  ad- 
vantages in  any  of  the  islands  where  such  an  attempt  was  likely  to  be 
made,  would  be  apt  to  be  followed  by  others,  and  end  in  converting  the 
archipelago  into  a  great  theater  of  national  com])etition  for  exclusive 
advantages  and  territorial  acquisitions  which  might  become  fatal  to  the 
peace  of  the  world." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Rives,  Dec.  17,  1852.     MSS.  Inst.,  France. 
President  Fillmore's  message  of  Jan.  4,  1853,  and  Mr.  Everett's  report  of  the 

same  day,  as  to  tripartite  convention,  is  in  Senate  Ex.   Doc.   No.   1.3,  ;i2d 

Cong.,  2d  sess. 

"  I  ought  not  to  conclude  this  communication  without  indicating  the 
views  of  the  President  in  relation  to  the  intervention  of  Great  Britain, 
in  conjunction  with  France,  in  the  affairs  of  Cuba.  These  powers  pro- 
posed to  this  Government,  in  April,  1852,  to  enter  into  a  tripartite 
convention  for  guaranteeing  the  Spanish  dominion  over  Cuba.  The 
])roposition  was  very  properly  declined  by  this  Government.     *     *      * 

"  For  many  reasons  the  United  States  feel  deeply  interested  in  the 
destiny  of  Cuba.  They  will  never  consent  to  its  transfer  to  either  of 
the  Intervening  nations,  or  to  any  other  foreign  state.  They  would 
regret  to  see  foreign  powers  interfere  to  sustain  Spanish  rule  in  the 
island  should  it  provoke  resistance  too  formidable  to  be  overcome  by 
Spain  herself." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchanan,  July  2,  1853.     MSS.  Inst.,  Gr.  Brit. 

"  Nothing  will  be  done  on  our  part  to  disturb  its  (Cuba's)  present 

connection  with  Spain,  unless  the  character  of  that  connection  should 

be  so  changed  as  to  affect  our  present  or  prospective  security.     While  the 

United  States  would  resist  at  every  hazard  the  transference  of  Cuba 

to  any  European  nation,  they  would  exceedingly  regret  to  see  Spain 

resorting  to  any  power  for  assistance  to  uphold  her  rule  over  it.     Such 

a  dependence  on  foreign  aid  would  in  effect  invest  the  auxiliary  with 

the  character  of  a  protector,  and  give  it  a  pretext  to  interfere  in  our 

affairs,  and  also  generally  in  those  of  the  North  American  continent." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Soul6,  July23, 1853.    MSS.  Inst.,  Spain.    See  same 

to  same,  Apr.  3,  1854;  Rov.  13, 1854,  ibid.  ;  Mr.  Marcy  to  Mr.  Dodge,  May  1, 

18r)4,  ibid. 

"Should  the  rule  of  Spain  over  Cuba  be  so  severe  as  to  excite  revolu- 
tionary movements  in  that  island,  she  will  undoubtedly  find  volunteers 
in  the  ranks  of  the  Cubans  from  various  countries, 'and,  ownng  to  veiy  ob- 
vious causes,  more  from  the  United  States  probably  than  from  any  other; 
but  it  would  be  unjust  to  impute  to  »his  and  the  other  Governments  to 

379 


§  GO.]  INTERVENTION'.  [CHAP.  III. 

wbieL  tlioso  volunteers  formerly  belonged  an  nnfriendly  disposition  to- 
wards lier,  or  a  desire  to  aid  clandestine!}-  in  the  attempt  to  wrest  that 
island  fn.ni  her.  There  is  reason  to  believe  that  Spain  herself,  as  well  as 
other  European  Goveinments,  suspects  hal  the  people  of  the  United 
States  are  desirous  of  deraching  Cuba  from  its  i)resent  transatlantic  de- 
l)endence,  regardless  of  the  rights  of  Spain,  with  a  view  of  annexing  it  to 
this  Union:  and  that  our  Government  was  disposed  to  connive  at  the 
particii)ation  of  our  citizens  in  the  past  disturbances  in  that  island,  and 
would  again  do  so  on  the  recurrence  of  similar  events.  Our  defense 
against  such  an  unfounded  suspicion,  and  the  only  one  which  self-re- 
spect allows  us  to  make,  is  an  appeal  to  our  past  course." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  SonU,  July  23,  185.'}.    MSS.  Inst.,  Spain. 
As  to  sfcizure  of  Black  Warrior,  see  House  Ex.  Doc.  No.  76,  86,  33d  Cong.,  1st 
sess..  House  Ex.  Doc.  No.  93,  33(1  Cong.,  2il  sess.  ;  and  see  infra,  $  189. 

"Should  you  find  persons  of  position  or  intluence  disposed  to  con- 
verse on  the  subject,  the  considerations  in  favor  of  a  cession  [of  Cuba] 
are  so  many  and  so  strong  that  those  who  can  be  brought  to  listen 
would  very  likely  become  converts  to  the  measure.  But  should  you 
have  reason  to  believe  that  tlie  men  in  power  are  averse  to  entertaining 
such  a  proposition, — that  the  offer  of  it  would  be  offensive  to  the  national 
l)ride  of  S[)ain,  and  that  it  would  find  no  favor  in  any  considerable  class 
of  the  i^eople,  then  it  will  be  but  too  evident  that  the  time  for  opening 
or  attempting  to  open  such  negotiation  has  not  arrived.  It  a[)pears  to 
the  President  that  nothing  could  be  gained  and  something  might  be 
lost  by  an  attempt  to  push  on  a  negotiation  against  such  a  general  re- 
sistance. This  view  of  the  case  is  taken  on  the  supposition  that  you 
shall  become  convinced  Uhat  a  proposition  for  the  cession  of  Cuba  would 
certainly  be  rejected." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Soul<S,  Nov.  13,  18.54.    MSS.  In^t.,  Spain. 
As  to  piucbaso  of  Cuba,  see  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchanan,  June 
27,  1854.    MSS.  Inst.,  Gr.  Brit. 

"  In  the  summer  of  1854  a  conference  was  held  by  the  ministers  of  the 
United  States  accredited  at  London,  Paris,  and  Madrid,  with  a  view  to 
consult  on  the  negotiations  which  it  might  be  advisable  to  carry  on 
simultaneously  at  these  several  courts,  for  the  satisfactory  adjustment 
witli  Spain  of  the  affairs  connected  with  Cuba.  The  joint  dispatch  of 
Messrs.  Buchanan,  Mason,  and  Soule  to  the  Secretary  of  State,  dat-ed 
Aix-la  Chapelle,  October  18, 1854,  after  remarking  that  the  United  States 
had  never  acquired  a  foot  of  territory,  not  even  after  a  successful  war 
with  Mexico,  except  by  j)urchase  or  by  the  voluntary  a])plication  of  the 
l)eople,  as  in  the  case  of  Texas,  thus  proceeds:  'Our  past  history  Ibr- 
bids  that  we  should  acquire  the  Island  of  Cuba  without  the  consent  of 
Si)ain,  unless  justified  by  the  great  law  of  self-preservation.  We  must, 
in  any  event,  preserve  our  own  conscious  rectitude  and  our  self-respect. 
Whilst  pursuing  this  course,  we  can  afford  to  disregard  the  censures  of 
the  world,  to  which  we  have  been  so  often  and  so  unjustly  exposed. 
After  we  shall  have  offered  Spain  a  i)rice  for  Cuba  far  beyond  its  pres- 
ent value,  and  this  shall  have  been  refused,  it  will  then  be  time  to  con- 

380 


CHAP.  III.]  CUBA.  [§  60. 

sider  the  (juestion,  does  Cuba,  in  the  ])ossessioii  of  Spain,  t^eiionsly 
endanger  our  internal  peace  and  tlie  existence  of  our  cherisLed  Union? 
Shoul(i  this  question  be  answered  in  the  affirmative,  then  by  every  law, 
human  and  divine,  we  shall  be  justified  in  wresting;  it  from  Spain,  it 
we  possess  the  ])ower;  and  this  upon  the  very  same  principle  that 
would  justify  an  individual  in  tearing  down  the  burniuj?  house  of  his 
neighbor  if  there  were  no  other  means  of  preventing-  the  flames  from 
destroying'  his  own  home.  Under  such  circumstances,  we  ought  neither 
to  count  the  cost  nor  regard  the  odds  which  Spain  might  enlist  against 
us.  We  forbear  to  enter  into  the  question  whether  the  present  condi- 
tion of  the  island  would  justify  such  a  measure.  We  should,  however, 
be  lecreant  to  our  duty,  be  unworthy  of  our  gallant  forefathers,  and 
commit  base  treason  against  our  posterity  should  we  permit  Cuba  to 
be  Africanized  and  become  a  second  St.  Domingo,  with  all  its  attend- 
ant horrors  to  the  white  race,  and  suffer  the  flames  to  extend  to  our 
own  neighboring  shores,  seriously  to  endanger  or  actually  to  consume 
the  fair  fabric  of  our  Union,  and  lest  there  might  be  any  misappre- 
hension of  this  language  as  implying  the  alternative  of  cession  and 
seizure,  except  as  the  result  of  absolute  necessity,  Mr.  Marcy,  Secretary 
of  State,  writes,  November  13, 185-4,  to  Mr.  Soule:  'To conclude  that,  on 
the  rejection  of  a  proposition  to  cede,  seizure  should  ensue,  would  be  to 
assume  that  selfpresfrvation  necessitates  the  acquisition  of  Cuba  by  the 
United  States;  that  Spain  has  refused,  and  .will  persist  in  refusing,  our 
reclamations  for  injuries  and  wrongs  inflicted,  and  that  she  will  make 
no  arrangement  for  our  future  security  against  the  recurrence  of  similar 
injuries  and  wrongs.'  Cong.  Doc,  33d  Cong.,  2d  sess.,  H.  R.  No.  93. 
See  for  the  documents  in  extenso,  the  last  edition  of  this  work,  App., 
p.  672,  and  Lawrence  on  Visitation  and  Search,  App.,  p.  205." 

Lawrence's  Wheaton  (ed.  1863),  149, 150. 

As  to  Ostend  Conference,  see  House  Ex.  Doc.  No.  93,  33d  Cong.,  2d  sess. ;  con- 
taining also  correspondence  as  to  spoliation  of  Black  Warrior  and  other 
spoliations. 

"The  truth  is,  that  Cuba,  in  its  existing  colonial  condition,  is  a  con- 
stant source  of  injury  and  annoyance  to  the  American  people.  It  is  the 
only  spot  in  the  civilized  world  where  the  African  slave  trade  is  tol- 
erated ;  and  we  are  bound  by  treaty  with  Great  Britain  to  maintain  a 
naval  force  on  the  coast  of  Africa,  at  much  expense  both  of  life  and 
treasure,  solely  for  the  purpose  of  arresting  slavers  bound  to  that  island. 
The  late  serious  diflBculty  between  the  United  States  and  Great  Brit- 
ain respecting  the  right  of  search,  now  so  happily  terminated,  could 
never  have  arisen  if  Cuba  had  not  afforded  a  market  for  slaves.  As 
long  as  this  market  shall  remain  open  there  can  be  no  hope  for  the  civ- 
ilization of  benighted  Africa.  Whilst  the  demand  for  slaves  continues 
in  Cuba,  wars  will  be  waged  among  the  petty  and  barbarous  chiefs  in 
Africa  for  the  purpose  of  seizing  subjects  to  supply  this  trade.  In  such 
a  condition  of  affairs  it  is  impossible  that  the  light  of  civilization  and 
religion  can  ever  penetrate  these  dark  abodes. 

"It  has  been  made  known  to  the  world  by  my  predecessors  that  the 
United  States  have,  on  several  occasions,  endeavored  to  acquire  Cuba 
from  Spain  by  honorable  negotiation.     If  this  were  accomplished,  the 

381 


§  60.]  INTERVENTION.  [CHAP.  III. 

last  relic  of  tlic  African  slave  trade  wonld  iustantly  disappear.  We 
would  not,  if  we  could,  acquire  Cuba  in  any  other  manner.  This  is 
due  to  our  national  character.  All  the  territory  which  we  have  ac- 
quired since  the  origin  of  the  Government  has  been  by  fair  purchase 
from  France,  Spain,  and  Mexico,  or  by  the  free  and  voluntary  act  of  the 
independent  State  of  Texas  in  blending  her  destinies  with  our  own. 
This  course  we  shall  ever  pursue,  unless  circumstances  should  occur 
which  we  do  not  now  anticipate,  rendering  a  departure  from  it  clearly 
justifiable  under  the  imperative  and  overruling  law  of  self-preservation. 

"The  Island  of  Cuba,  from  its  geographical  position,  commands  the 
mouth  of  the  Mississippi  and  the  immense  and  annually  increasing  trade, 
foreign  and  coastwise,  from  the  valley  of  that  noble  river,  now  embrac- 
ing half  the  sovereign  States  of  the  Union.  With  that  island  under 
the  dominion  of  a  distant  foreign  power,  this  trade,  of  vital  importance 
to  these  States,  is  exposed  to  the  danger  of  being  destroyed  in  time  of 
war,  and  it  has  hitherto  been  subjected  to  perpetual  injury  and  annoy- 
ance in  time  of  peace.  Our  relations  with  Spain,  which  ought  to  be  of 
the  most  friendly  character,  must  always  be  placed  in  jeopardy,  whilst 
the  existing  colonial  government  over  the  island  shall  remain  in  its  pres- 
ent condition. 

"'  Whilst  the  possession  of  the  island  would  be  of  vast  importance  to 
the  United  States,  its  value  to  Spain  is,  comparatively,  unimportant. 
Such  was  the  relative  situation  of  the  i^arties  when  the  great  Napoleon 
transferred  Louisiana  to  the  United  States.  Jealous  as  he  ever  was  of 
the  national  honor  and  interests  of  France,  no  person  throughout  the 
world  has  imputed  blame  to  him  for  accepting  a  pecuniary  equivalent 
for  this  cession." 

President  Buchanan,  Second  Annual  Message,  1858. 

Mr.  Slidell's  report  on  acquisition  of  Cuba,  Jan.  24,  1859,  is  in  Senate  Rep.  Com. 
No.  351,  35th  Cong.,  2d  sess. 

For  minority  report,  of  .Jan.  24,  1859,  of  committee  in  the  House  of  Represent- 
atives, objecting  to  the  bill  appropriating  $30,000,000  for  the  purchase  of 
Cuba,  see  House  Rep.  No.  134,  35th  Cong.,  2d  sess. 

"  I  need  not  repeat  the  arguments  which  I  urged  in  my  last  annual 
message,  in  favor  of  the  acquisition  of  Cuba  by  fair  purchase.  My  opin- 
ions on  that  measure  remain  unchanged.  I,  therefore,  again  invite  the 
serious  attention  of  Congress  to  this  important  subject.  Without  a  rec- 
ognition of  this  policy  on  their  part,  it  will  be  almost  impossible  to  in- 
stitute negotiations  with  any  reasonable  prospect  of  success." 
President  Buchanan,  Third  Annual  Message,  1859 

"I  reiterate  the  recommendation  contained  in  my  annual  message  of 
December,  1858,  and  repeated  in  that  of  December,  1859,  in  favor  of 
the  acquisition  of  Cuba  from  Spain  by  fair  purchase.  I  lirmly  believe 
that  such  an  acquisition  would  contribute  essentially  to  the  well-being 
and  prosperity  of  both  countries  in  all  future  time,  as  well  as  prove  the 
382 


CHAP.  III.]  CUBA.  [§  GO 

certain  means  of  immediately  abolisliiug  the  African  slave  f  ratle  tlirongh- 
oi'.t  tlie  world.  I  would  not  rei)eat  this  recommendation  upon  the  [)n\s- 
ent  occasion  if  I  believed  tliiit  the  transfer  of  Culia  to  the  United  States, 
upon  conditions  highly  favorable  to  Spain,  could  justly  tarnish  the  na- 
tional honor  of  the  i)roud  and  ancient  Si)anish  nionarchy.  Surely  no 
person  ever  attributed  to  the  First  Napoleon  a  disregard  of  the  national 
honor  of  France  for  transferring  Louisiana  to  the  United  States  for  n. 
fair  equivalent,  both  in  money  and  commercial  advantages." 
President  Buchanan,  Fourth  Annual  Message,  1860. 

"  As  the  United  States  is  the  freCvSt  of  all  nations,  so,  too,  its  people 
.sympathize  with  all  peoples  struggling  for  liberty  and  self-government. 
But  while  so  sympathizing,  it  is  due  to  our  honor  that  we  should  abstain 
from  enforcing  our  views  upon  unwilling  nations,  and  from  taking  an 
interested  part,  icithout  invitation,  in  the  quarrels  between  difl'erent  na- 
tions or  between  Governments  and  their  subjects.  Our  course  should 
always  be  in  conformity  with  strict  justice  and  law,  international  and 
local.  Such  has  been  the  policy  of  the  Administration  in  dealing  with 
these  questions.  For  more  than  a  year  a  valuable  jirovince  of  Spain, 
and  a  near  neighbor  of  ours,  in  whom  all  our  people  cannot  but  feel  a 
deep  interest,  has  been  struggling  for  independence  and  freedom.  The 
people  and  Government  of  the  United  States  entertain  the  same  warm 
feelings  and  symi)athies  for  the  people  of  Cuba,  in  their  pending  strug- 
gle, that  they  manifested  throughout  the  previous  struggles  between 
Spain  and  her  former  colonies  in  behalf  of  the  latter.  But  the  contest 
has  at  no  time,  assumed  the  conditions  which  amount  to  a  war  in  the 
sense  of  international  law,  or  which  would  show  the  existence  of  a  dc 
facto  political  organization  of  the  insurgents  sufficient  to  justify  a  rec- 
ognition of  belligerency.        ^ 

"  The  priucii)le  is  maintained,  however,  that  this  nation  is  its  own 
judge  when  to  accord  the  rights  ofbelligereucy,  either  to  a  people  strug- 
gling to  free  themselves  from  a  Government  they  believe  to  be  oi)press- 
ive,  or  to  independent  nations  at  war  with  each  other. 

"The  United  States  have  no  disposition  to  interfere  with  the  existing 
relations  of  Spain  to  her  colonial  i)OSsessions  on  this  continent.  They 
believe  that  in  due  time  Spain  and  other  European  powers  will  (ind 
their  interest  in  terminating  those  relations,  and  establishing  their  pres 
ent  dependencies  as  independent  powers — members  of  the  family  of  na- 
tions. These  dependencies  are  no  longer  regarded  as  subject  to  trana 
fer  from  one  European  power  to  another.  When  the  present  relation 
of  colonies  ceases  they  are  to  become  independent  powers,  exercising; 
the  right  of  choice  and  of  self-control  in  the  determination  of  their  future, 
condition  and  relations  with  other  powers. 

"  The  United  States,  in  order  to  put  a  stop  to  bloodshed  in  Cuba, 
and  in  the  interest  of  a  neighboring  people,  proposed  their  good  offices 
to  bring  the  existing  contest  to  a  termination.    The  offer,  not  being 

383 


^  60.]  INTERVENTION.  [CHAP.  III. 

accepted  by  Spain  on  a  basis  wliich  wc  believe<l  could  ])e  received  bj"^ 
Cuba,  was  withdrawn.  It  is  hoped  that  the  good  ofiices  of  the  United 
States  may  yet  prove  advautageous  for  the  settlement  of  this  unhappy 
strife." 

Presiilont  Grant,  First  Annual  Message,  1861). 

As  to  Cuban  insurrection,  18C9,  see  Sen.  Ex.  Doc.  No.   7,  41st  Cong.,  2d  sess.; 
House  Ex.  Doe.  No.  140,  No.  160. 

"  In  my  annual  message  to  Congress,  at  the  beginning  of  its  present 
session,  I  referred  to  the  contest  which  had  then  for  more  thnn  a  year 
existed  in  the  Island  of  Cuba  between  a  portion  of  its  inhabitants  and 
the  Government  of  Spain,  and  the  feelings  and  sympathies  of  the  people 
and  Government  of  the  United  States  for  the  people  of  Cuba,  as  for  all 
peoples  struggling  for  liberty  and  self-government,  and  said  that  '  the 
cojitest  has  at  no  time  assumed  the  conditions  which  amount  to  war,  in 
the  sense  of  international  law,  or  which  would  show  the  existence  of  a 
de  facto  political  organization  of  tl»e  insurgents  sufficient  to  justify  a 
recognition  of  belligerency.' 

"  During  the  six  months  which  have  passed  since  the  date  of  that  mes- 
sage, the  condition  of  the  insurgents  has  not  improved;  and  the  insur- 
rection itself,  although  not  subdued,  exhibits  no  signs  of  advance,  but 
seems  to  be  confined  to  an  irregular  system  of  hostilities,  carried  on  by 
small  and  illy-armed  bands  of  men,  roaming,  without  concentration, 
through  the  woods  and  the  sparsely  populated  regions  of  the  island, 
attacking-  from  ambush  convoys  and  small  bands  of  troops,  burning 
plantations  and  the  estates  of  those  not  symjiathizing  with  Their  cause. 

"  But  if  the  insurrection  has  not  gained  ground,  it  is  equally'  true  that 
Spain  has  not  suppressed  it.  Climate,  disease,  and  the  occasional  bul- 
let have  worked  destruction  among  the  soldiers  of  Spain ;  and  although 
the  Spanish  authorities  have  possession  of  every  seaport  and  every 
town  on  the  island,  they  have  not  been  able  to  subdue  the  hostile  feel- 
ing which  has  driven  a  considerable  number  of  the  native  iidiabitants 
of  the  island  to  armed  resistance  against  Spain,  and  still  leads  them  to 
endure  the  dangers  and  the  privations  of  a  roaming  life  of  guerrilla 
warfare. 

"  On  either  side  the  contest  has  been  conducted,  and  is  still  carried 
on,  with  a  lamentable  disregard  of  human  life,  and  of  the  rules  and  prac- 
tices which  modern  civilization  has  prescribed  in  mitigation  of  the  neces- 
sary horrors  of  war.  The  torch  of  Spaniard  and  of  Cuban  is  alike  busy 
in  carrying  devastation  over  fertile  regions;  murderous  and  revengeful 
decrees  are  issued  and  executed  by  both  parties.  Count  Valmaseda 
and  Colonel  Boet,  on  the  part  of  Spain,  have  each  startled  humanity 
and  aroused  the  indignation  of  the  civilized  world  by  the  execution, 
each,  of  a  score  of  prisoners  at  a  time,  while  General  Quesada,  the  Cuban 
chief,  coolly,  and  with  apparent  unconsciousness  of  aught  else  than  a 
proper  act,  has  admitted  the  slaughter,  by  his  own  deliberate  order,  in 
one  day,  of  upward  of  six  huntlred  and  fifty  prisoners  of  war. 
384 


CHAP.  III.]  CUBA.  [§  60. 

"A  summary  trial,  with  few,  if  any,  escapes  from  coiivictiou,  followed 
by  immediate  execution,  is  the  fate  of  those  arrested  on  either  side  on 
suspicion  of  infidelity  to  the  cause  of  the  party  making  the  arrest. 

"  Whatever  may  be  the  sympathies  of  the  people  or  of  the  Government 
of  the  United  States  for  the  cause  or  objects  for  which  a  part  of  the 
people  of  Cuba  are  understood  to  have  put  themselves  in  armed  resist- 
ance to  the  Government  of  Spain,  there  can  be  no  just  sympathy  in  a 
conflict  carried  on  by  both  parties  alike  in  such  barbarous  violation  of 
the  rules  of  civilized  nations,  and  with  such  continued  outrage  upon  the 
plainest  principles  of  humanity. 

"  We  cannot  discriminate  in  our  censure  of  their  mode  of  conducting 
their  contest  between  the  Spaniards  and  the  Cubans  ;  each  commit  the 
same  atrocities  and  outrage  alike  the  established  rules  of  war. 

"  The  properties  of  many  of  our  citizens  have  been  destroyed  or  em- 
bargoed, the  lives  of  several  have  been  sacrificed,  and  the  liberty  of 
others  has  been  restrained.  In  every  case  that  has  come  to  the  knowl- 
edge of  the  Government,  an  early  and  earnest  demand  for  reparation 
and  indemnity  has  been  made,  and  most  emphatic  remonstrance  has 
been  presented  against  the  manner  in  which  the  strife  is  conducted,  and 
against  the  reckless  disregard  of  human  life,  the  wanton  destruction  of 
material  wealth,  and  the  cruel  disregard  of  the  established  rules  of  civil- 
ized warfare. 

"1  have,  since  the  beginning  of  the  present  session  of  Congress, 
communicated  to  the  House  of  Representatives,  upon  their  request,  an 
account  of  the  steps  which  1  had  taken,  in  the  hope  of  bringing  this  sad 
conflict  to  an  end,  and  of  securing  to  the  people  of  Cuba  the  blessings 
and  the  right  of  independent  self-government.  The  efforts  thus  made 
failed,  but  not  without  an  assurance  from  Spain  that  the  good  oflBces  of 
this  Government  might  still  avail  for  the  objects  to  which  they  had 
been  addressed. 

"  During  the  whole  contest  the  remarkable  exhibition  has  been  made 
of  large  numbers  of  Cubans  escaping  from  the  island  and  avoiding  the 
risks  of  war  ;  congregating  in  this  country  at  a  safe  distance  from  the 
scene  of  danger,  and  endeavoring  to  make  war  from  our  shores,  to  urge 
our  people  into  the  fight  which  they  avoid,  and  to  embroil  this  Govern- 
ment in  complications  and  possible  hostilities  with  Spain.  It  can  scarce 
be  doubted  that  this  last  result  is  the  real  object  of  these  parties,  al- 
though carefully  covered  under  the  deceptive  and  apparently  plausible 
demand  for  a  mere  recognition  of  belligerency. 

"It  is  stated,  on  what  I  have  reason  to  regard  as  good  authority, 
that  Cuban  bonds  have  been  prepared  to  a  large  amount,  whose  pay 
raent  is  made  dependent  upon  the  recognition  by  the  United  States  of 
either  Cuban  belligerency  or  independence.  The  object  of  making  their 
value  tiius  contingent  upon  the  action  of  this  Government  is  a  subject 
lor  serious  reflection. 

S.  Mis,  162— VOL.  I 25  385 


§  60.]  INTERVENTION.  [CHAP.  III. 

''  In  deterininiug  the  course  to  be  adopted  on  the  demand  thus  made 
for  a  recognition  of  belligerency,  the  liberal  and  peaceful  principles 
adopted  by  the  ••'  Father  of  his  Country  "  and  the  eminent  statesmen  of 
his  day,  and  followed  by  succeeding  Chief  Magistrates  and  the  men  of 
their  day,  may  furnish  a  safe  guide  to  those  of  us  now  charged  with  the 
direction  and  control  of  the  public  safety. 

"  From  1789  to  1815  the  dominant  thought  of  our  statesmen  was  to 
keep  the  United  States  out  of  the  wars  which  were  devastating  Europe. 
The  discussion  of  measures  of  neutrality  begins  with  the  state  papers 
of  Mr.  Jefferson  when  Secretary  of  State.  He  shows  that  they  are 
measures  of  national  right  as  well  as  of  national  duty ;  that  misguided 
individual  citizens  cannot  be  tolerated  in  making  war  according  to  their 
own  caprice,  passions,  interests,  or  foreign  sympathies;  that  the  agents 
of  foreign  Governments,  recognized  or  unrecognized,  cannot  be  permit- 
ted to  abuse  our  hospitalitj'  by  usurping  the  functions  of  enlisting  or 
equipping  military  or  naval  forces  within  our  territory.  Washington 
inaugurated  the  policy  of  neutrality  and  of  absolute  abstinence  from  all 
foreign  entangling  alliances,  which  resulted,  in  1794,  in  the  first  munic- 
ipal enactment  for  the  observance  of  neutrality. 

"  The  duty  of  opposition  to  filibustering  has  been  admitted  by  every 
President.  Washington  encountered  the  efibrts  of  Genet  and  the  French 
revolutionists ;  John  Adams,  the  projects  of  Miranda ;  Jefferson,  the 
schemes  of  Aaron  Burr.  Madison  and  subsequent  Presidents  had  to 
deal  with  the  question  of  foreign  enlistment  or  equipment  in  the  United 
States,  and  since  the  days  of  John  Quincy  Adams  it  has  been  one  of  the 
constant  cares  of  Government  in  the  United  States  to  prevent  piratical 
expeditions  against  the  feeble  Spanish- American  Eepublicsfrom  leaving 
our  shores.  In  no  country  are  men  wanting  for  any  enterprise  that 
holds  out  promise  of  adventure  or  of  gain. 

"  In  the  early  days  of  our  national  existence  the  whole  continent  of 
America  (outside  of  the  limits  of  the  United  States),  and  all  its  islands, 
were  in  colonial  dependence  upon  European  powers. 

''The  revolutions  which,  from  1810,  spread  almost  simultaneously 
through  the  Spanish-American  continental  colonies,  resulted  in  the 
establishment  of  new  states,  like  ourselves,  of  European  origin,  and 
interested  in  excluding  European  politics  and  the  questions  of  dynasty 
and  of  balances  of  power  from  further  influence  in  the  is^ew  World. 

"  The  American  policy  of  neutrality,  important  before,  became  doubly 
so,  from  the  fact  that  it  became  applicable  to  the  new  Republics  as  well 
as  to  the  mother  country. 

"•  It  then  devolved  upon  us  to  determine  the  great  international  ques- 
tion, at  what  time  and  under  what  circumstances  to  recognize  a  new 
power  as  entitled  to  a  place  among  the  family  of  nations,  as  well  as  the 
preliminary  question  of  the  attitude  to  be  observed  by  this  Govfemment 
toward  the  insurrectionary  party,  pending  the  contest. 
386 


CHAP.  III.]  CUBA.  [§  60. 

"  Mr.  Monroe  concisely  expressed  the  rule  which  has  controlled  the 
action  of  this  Government  with  reference  to  revolting  colonies  pending 
their  struggle,  by  saying,  'As  soon  as  the  movement  assumed  such  a 
steady  aud  consistent  form  as  to  make  the  success  of  the  provinces  prob- 
able, the  rights  to  which  they  were  entitled,  by  the  laws  of  uatious  as 
equal  parties  to  a  civil  war,  were  extended  to  them.' 

"  The  strict  adherence  to  this  rule  of  public  i)olicy  has  been  one  of  the 
highest  honors  of  American  statesmanship,  and  has  secured  to  this  Gov- 
ernment the  confidence  of  the  feeble  powers  on  this  continent,  which 
induces  them  to  rely  upon  its  friendship  aud  absence  of  designs  of  con- 
quest, and  to  look  to  the  United  States  for  example  and  moral  protec- 
tion. It  has  given  this  Government  a  position  of  prominence  and  of 
influence  which  it  should  not  abdicate,  but  which  imposes  upon  it  tlie 
most  delicate  duties  of  right  and  of  honor  regarding  American  ques- 
tions, whether  those  questions  affect  emancipated  colonies  or  colonies 
still  subject  to  European  dominions. 

"  The  question  of  belligerency  is  one  of  fact  not  to  be  decided  by 
sympathies  for  or  prejudices  against  either  party.  The  relations  be- 
tween the  parent  state  and  the  insurgents  must  amount,  in  fact,  to 
war  in  the  sense  of  international  law.  Fighting,  though  fierce  and  pro- 
tracted, does  not  alone  constitute  war;  there  must  be  military  forces 
acting  in  accordance  with  the  rules  and  customs  of  war — flags  of  truce, 
cartels,  exchange  of  prisoners,  &c. — and  to  justify  a  recognition  of  bel- 
ligerency there  must  be,  above  all,  a  de  facto  political  organization  of  the 
insurgents  sufficient  in  character  and  resources  to  constitute  it,  if  left 
to  itself,  a  state  among  nations  capable  of  discharging  the  duties  of  a 
state,  and  of  meeting  the  just  responsibilities  it  may  incur  as  such 
toward  other  powers  in  the  discharge  of  its  national  duties. 

"Applying  the  best  information  which  I  have  been  enabled  to  gather, 
whether  from  official  or  unofficial  sources,  including  the  very  exagger- 
ated statements  which  each  party  gives  to  all  that  may  prejudice  the 
opposite  or  give  credit  to  its  own  side  of  the  question,  I  am  unable  to 
see,  in  the  present  condition  of  the  contest  in  Cuba,  those  elements 
which  are  requisite  to  constitute  war  in  the  sense  of  international  law. 

"  Tlie  insurgents  hold  no  town  or  city  ;  have  no  established  seat  of 
Government ;  they  have  no  prize  courts  ;  no  organization  for  the  receiv- 
ing and  collecting  of  rev^enue;  no  sea  port  to  which  a  prize  may  be  car- 
ried or  through  which  access  can  be  had  by  a  foreign  power  to  the  lim- 
ited interior  territory  and  mountain  fastnesses  which  they  occupy. 
The  existence  of  a  legislature  representing  any  popular  constituency  is 
more  than  doubtful. 

"In  the  uncertainty  that  hangs  around  the  entire  insurrection  there 
is  no  palpable  evidence  of  an  election,  of  any  delegated  authority,  or  of 
any  Government  outside  the  limits  of  the  camps  occupied  from  day  to 
day  by  the  roving  companies  of  insurgent  troops.  There  is  no  com- 
merce }  no  trade,  either  internal  or  foreign  ;  no  manufactures. 

387 


§  60.]  INTERVENTION.  [CHAP.  III. 

"The  late  commander-in-chief  of  the  insurgents,  having  recently 
come  to  the  United  States,  publicly  declared  that  '  all  commercial  in- 
tercourse or  trade  with  the  exterior  world  has  been  utterly  cut  off,'  and 
lie  further  added,  '  To-day  we  have  not  ten  thousand  arms  in  Cuba.' 

"  It  is  a  well-established  principle  of  public  law  that  a  recognition  by 
a  foreign  state  of  belligerent  rights  to  insurgents  under  circumstances 
such  as  now  exist  in  Cuba,  if  not  justified  by  necessity,  is  a  gratuitous 
demonstration  of  moral  support  to  the  rebellion.  Such  necessity  ma;^ 
yet  hereafter  arrive,  but  it  has  not  yet  arrived,  nor  is  its  probabdity 
clearly  to  be  seen. 

"  If  it  be  war  between  Spain  and  Cuba,  and  be  so  recognized,  it  is  our 
duty  to  provide  for  the  consequences  which  may  ensue  in  the  embar- 
rassment to  our  commerce  and  the  interference  with  our  revenue. 

"  If  belligerency  be  recognized,  the  commercial  marine  of  the  United 
States  becomes  liable  to  search  and  to  seizure  by  the  commissioned 
cruisers  of  both  parties — they  become  subject  to  the  adjudication  of 
prize  courts. 

"  Our  large  coastwise  trade  between  the  Atlantic  and  the  Gulf  States, 
and  between  both  and  the  Isthmus  of  Panama  and  the  states  of  South 
America  (engaging  the  larger  part  of  our  commercial  marine)  passes, 
of  necessity,  almost  in  sight  of  the  Island  of  Cuba.  Under  the  treaty 
with  Spain  of  1795,  as  well  as  by  the  law  of  nations,  our  vessels  will  be 
liable  to  visit  on  the  high  seas.  In  case  of  belligerency,  the  carrying  of 
contraband,  which  now  is  lawful,  becomes  liable  to  the  risks  of  seizure 
and  condemnation.  The  parent  Government  becomes  relieved  from 
responsibility  for  acts  done  in  the  insurgent  territory,  and  acquires  the 
right  to  exercise  against  neutral  commerce  all  the  powers  of  a  party  to 
a  maritime  war.  To  what  consequences  the  exercise  of  those  powers 
may  lead,  is  a  question  which  I  desire  to  commend  to  the  serious  con- 
sideration of  Congress. 

"  In  view  of  the  gravity  of  this  question,  I  have  deemed  it  my  duty  to 
invite  the  attention  of  the  war-making  power  of  the  country  to  all  the 
relations  and  bearings  of  the  question  in  connection  with  the  declara- 
tion of  neutrality  tind  granting  of  belligerent  rights. 

''  There  is  not  a  de  facto  government  in  the  Island  of  Cuba  sufficient 
to  execute  law  and  maintain  just  relations  with  other  nations.  S])ain 
has  not  been  able  to  suppress  the  opposition  to  Spanish  rule  on  the 
island,  nor  to  award  speedy  justice  to  other  nations,  or  citizens  of  other 
nations,  when  their  rights  have  been  invaded. 

"  There  are  serious  complications  growing  out  of  the  seizurj^of  Ameri- 
can vessels  upon  the  high  seas,  executing  American  citizens  without 
proper  trial,  and  confiscating  or  embargoing  the  property  of  American 
citizens.  Solemn  protests  have  been  made  against  every  infraction  of 
the  rights  either  of  individual  citizens  of  the  United  States  or  the  rights 
of  <mr  flag  upon  the  high  seas,  and  all  proper  steps  have  been  taken 
388 


CTTAP.  III.]  CUBA.  [§  60. 

aud  are  bein^  ]»resse(l  for  llie  })r()iK'r  reparation  of  evcMy  iiidi^iiily  coiii- 
l)laiued  of. 

"Tlie  question  of  bellij^'erency,  however,  which  is  to  be  decided  upon 
definite  i)rincii)les  and  according  to  ascertained  facts,  is  entirely  differ- 
ent from  and  unconnected  with  the  other  questions  of  the  manner  in 
which  the  strife  is  carried  on  on  both  sides,  and  the  treatment  of  our 
citizens  entitled  to  our  protection. 

"  These  questions  concern  our  own  dif^nity  and  responsibility,  and  they 
have  been  made,  as  I  have  said,  the  subjects  of  repeated  communica- 
tions with  Spain,  and  of  protests  and  demands  for  redress  on  our  part. 
It  is  hoped  that  these  will  not  be  disregarded ;  but  should  they  be, 
these  questions  will  be  made  the  subject  of  further  communication  to 
Congress." 

President  Grant,  Special  Message  of  June  13,  1870. 

'•It  is  to  be  regretted  that  the  disturbed  condition  of  the  Island  of 
Cuba  continues  to  be  a  source  of  annoyance  and  of  anxiety.  The  exist- 
ence of  a  protracted  struggle  in  such  close  proximity  to  our  own  terri- 
tory, without  apparent  prospect  of  an  early  termination,  cannot  be  other 
than  an  object  of  concern  to  a  iieople  who,  while  abstaining  from  inter- 
ference in  the  affairs  of  other  powers,  naturally  desire  to  see  every 
country  in  the  undisturbed  enjoyment  of  peace,  liberty,  aud  the  bless- 
ings of  free  institutions. 

"  Our  naval  commanders  in  Cuban  waters  have  been  instructed,  in 
case  it  should  become  necessary,  to  spare  no  effort  to  protect  the  lives 
and  i)roi)erty  of  bona-tide  American  citizens,  and  to  maintain  the  dig- 
nity of  the  flag. 

"  It  is  hoped  that  all  pending  questions  with  Spain  growing  out  of 
the  affairs  in  Cuba  may  be  adjusted  in  the  spirit  of  peace  and  concilia- 
tion which  has  hitherto  guided  the  two  i)owers  in  their  treatment  of 
such  questions." 

President  Grant,  Third  Annual  Message,  1871. 

Senate  Ex.  Doc.  No.  32,  42d  Cong.,  2d  sess.,  gives  Mr.  Fish's  report  of  Feb.  9, 

1872,  with  accompanying  pai)ers.     See  supra,  vi  57,  for  Mr.  Fish's  report  of 

July  14,  1870. 

"  The  present  ministry  in  Spain  has  given  assurance  to  the  public, 
through  their  organs  of  the  press,  and  have  confirmed  the  assurance  to 
you  personally  (as  you  have  reported  in  recent  dispatches),  of  their  in- 
tention to  put  in  operation  a  series  of  extensive  reforms,  embracing 
among  them  some  of  those  which  this  Government  has  been  earnest  in 
urging  upon  their  consideration  in  relation  to  the  colonies  which  are 
our  near  neighbors. 

"  Sustained,  as  is  the  present  ministry,  by  the  large  popular  vote 
which  has  recently  returned  to  the  Cortes  an  overwhelming  majority  in 
its  support,  there  can  be  no  more  room  to  doubt  their  ability  to  carry 
into  operation  the  reforms  of  which  they  have  given  promise, than  there* 

389 


§  60.]  INTERVENTION.  [CHAP.  III. 

can  be  justification  to  question  the  sincerity  with  which  the  assurance 
was  given.  It  seems,  therefore,  to  be  a  fitting  occasion  to  look  back 
upon  the  relations  between  the  United  States  and  Spain,  and  to  mark 
the  progress  which  may  have  been  made  in  accomplishing  those  ob- 
jects in  which  we  have  been  promised  her  co-operation.  It  must  be 
acknowledged  with  regret  that  little  or  no  advance  has  been  made. 
The  tardiness  in  this  respect,  however,  cannot  be  said  to  be  in  any  way 
imputable  to  a  want  of  diligence,  zeal,  or  ability  in  the  legation  of  the 
United  States  at  Madrid.  The  Department  is  ])ersuaded  that  no  per- 
sons, however  gifted  with  those  qualities  and  faculties,  could  have  bet- 
ter succeeded  against  the  apparent  apathy  or  indifference  of  the  Span- 
ish authorities,  if,  indeed,  their  past  omission  to  do  what  we  have  ex- 
pected should  not  be  ascribable  to  other  causes. 

"  The  Spanish  Government,  partly  at  our  instance,  passed  a  law  pro- 
viding for  the  gradual  emancipation  of  slaves  in  the  West  India  colo- 
nies. This  law,  so  far  as  this  Department  is  aware,  remains  unexecuted, 
and  it  is  feared  that  the  recently  issued  regulations,  professedly  for  its 
execution,  are  wholly  inadequate  to  any  practical  result  in  favor  of 
emancipation,  if  they  be  not  really  in  the  interest  of  the  slaveholder 
and  of  the  continuance  of  the  institution  of  slavery.  While  we  fully 
acknowledge  our  obligation  to  the  general  rule  which  requires  a  nation 
to  abstain  from  interference  in  the  domestic  concerns  of  others,  circum- 
stances warrant  partial  exceptions  to  this  rule.  The  United  States 
have  emancipated  all  the  slaves  in  their  own  territory,  as  the  result  of 
a  civil  war  of  four  years,  attended  by  a  vast  effusion  of  blood  and  ex- 
penditure of  treasure.  The  slaves  in  the  Spanish  possessions  near  us 
are  of  the  same  race  as  those  who  were  bondsmen  here.  It  is  natural 
and  inevitable  for  the  latter  to  sympathize  in  the  oppression  of  their 
brethren,  and  especially  in  the  waste  of  life,  occasioned  by  inhuman 
punishments  and  excessive  toil.  Xor  is  this  sympathy  confined  to 
those  who  were  recently  in  bondage  among  us.  It  is  universal,  as  it 
is  natural  and  just.  It  rests  upon  the  instincts  of  humanity,  and 
is  the  recognition  of  those  rights  of  man  which  are  now  universally 
admitted.  Governments  cannot  resist  a  conviction  so  general  and  so 
righteous  as  that  which  condemns  as  a  crime  the  tolerance  of  human 
slavery,  nor  can  Governments  be  in  fault  in  raising  their  voice  against 
the  further  tolerance  of  so  grievous  a  blot  upon  humanity.  You  will, 
consequently,  in  decisive  but  respectful  terms,  remonstrate  against  the 
apparent  failure  of  Spain  to  carry  into  full  effect  the  act  referred  to. 
We  acknowledge  that  this  may  be  a  difficult  task.  The  reproaches, 
open  or  covert,  of  those  whose  supposed  interests  may  be  aflected  by 
it,  to  say  nothing  of  other  underhand  proceedings,  must  be  trying  to 
the  patience  and  highly  embarrassing  to  the  statesmen  who  may  be 
the  best  disposed  toward  the  measure.  All,  however,  who  countenance 
lukewarmness  or  neglect  in  carrying  it  into  effect  must,  more  or  less, 
390 


CHAP,  in.]  CUBA.  [§  60. 

be  liable  to  tbe  cbarge  of  duplicity  or  bad  faith,  a  charge  which  every 
man  of  bouor  in  high  station  ought  to  endeavor  to  avoid. 

"By  tbe  enactment  of  the  law  of  July,  1870,  tbe  Government  of  Spain 
is  practically  committed  to  the  policy  of  emancipation.  It  is  true  that 
the  law  was  far  from  being  as  comprehensive  a  measure  as  was  hoped 
for  by  the  friends  of  emancipation  both  in  Spain  and  throughout  Christ- 
endom, but  it  was  regarded  as  the  entering-wedge  and  the  first  step 
toward  the  extermination  of  a  great  wrong,  and  as  the  inauguration  of 
a  measure  of  justice  and  peace,  wherebj'  Spain,  to  her  high  honor,  de- 
clared herself  in  harmony  with  the  general  sentiment  of  modern  civili- 
zation and  with  the  principles  of  unquestioned  human  rights.  It  is  so 
manifestly  due  to  that  sentiment  and  to  those  principles  thai  their  rec- 
ognition, as  thus  evidenced,  be  made  practical  and  effective  by  the  en- 
forcement of  the  law,  that  it  cannot  be  questioned  that  Spain,  with  the 
pride  and  the  honor  that  mark  her  history,  will  no  longer  delay  the  ex- 
ecution of  the  law  and  the  observance  of  the  pledge  to  humanity  and 
to  justice  which  was  implied  in  the  enactment. 

''  Thei-e  is  another  view  which  may  be  taken  of  this  subject.  The  Span- 
ish Government  and  the  Spanish  people  are  understood  to  be  almost 
unanimously  adverse  to  the  independence  of  Cuba.  It  will  not  be  de- 
nied that  the  resistance  to  the  enforcement  of  the  emancipation  law 
proceeds  almost  entirely  from  those  interested  in  slaA^e  property  in  the 
Island  of  Cuba,  who  have,  through  the  successive  ministries  to  which 
the  Government  of  Spain  has  been  intrusted  since  the  enactment  of  the 
law  in  July,  1870,  been  enabled  hitherto  to  delay  and  to  defeat  its  exe- 
cution by  preventing  the  promulgation  of  regulations  effective  for  the 
end  to  which  the  law  was  directed. 

"An  imjiortant  law  is  thus  nullified  through  the  influence  and  agency 
of  a  class  in  Cuba  who  are  the  most  loud  in  profession  of  devotion  to 
the  integrity  of  the  Spanish  territory  and  to  the  continuance  of  Span- 
ish dominion  over  the  island.  The  example  of  disregard  to  laws  thus 
set  cannot  be  without  its  influence.  If  Spain  permits  her  authority  to 
be  virtually  and  practically  defied  in  that  island  by  a  refusal  or  neglect 
to  carry  into  effect  acts  of  the  home  Government  of  a  humane  tendency, 
is  not  this  tantamount  to  an  acknowledgment  of  inability  to  control  ? 
If  she  refuse  to  enforce  her  authority  in  one  instance,  why  may  it  not 
be  spurned  in  others,  and  will  not  her  supremacy,  sooner  or  later,  be- 
come nominal  only,  with  no  real  advantage  to  herself  or  her  colonies, 
but  to  the  serious  detriment  of  both,  as  well  as  of  those  other  powers 
whose  relations,  whether  of  neighborhood  or  of  commerce,  give  them 
special  interest  in  the  welfare  of  those  possessions? 

"It  is  also  represented  that  the  grasping  cupidity  of  sugar-planters 
in  Cuba  has  succeeded  in  enabling  them  virtually  to  annul  their  con- 
tracts with  coolies  for  a  limited  term  of  service,  coupled  with  the  privi- 
lege of  returning  to  their  homes  at  its  close,  and  that  those  unfortunate 
Asiatics,  under  regulations  for  an  enforced  re-engagement  when  their 

391 


§  60.]  INTERVENTION.  [CHAP.  III. 

ronncr  (loiUraci  may  Lave  expired,  are  being  i)racticall,y  reduced  to  tlie 
same  abjectt  eoiulitiou  as  the  African  slaves.  If  this  be  true,  it  is  im- 
possibk^  for  the  Government  of  any  civilized  country  to  be  indifferent 
to  so  atrocious  a  i)roceeding.  You  will  mention  this  subject  to  the 
S[)anish  minister  for  foreign  affairs,  and  will  not  conceal  the  view  which 
we  take  of  it. 

"The  insurrection  in  Cuba  has  now  lasted  four  years.  Attempts  to 
sui)pre8s  it,  so  far  futile,  have  been  made  probably  at  a  sacrifice  of 
more  than  a  hundred  thousand  lives  and  an  incalculable  amount  of 
property.  Our  commercial  and  other  connections  with  that  island 
compel  us  to  take  a  warm  interest  in  its  peaceful  and  orderly  condition, 
without  which  there  cannot  be  prosperity. 

''Cuba  being  separated  from  this  country  by  a  narrow  passage,  the 
tem])tations  for  reckless  adventurers  here  to  violate  our  law  and  embark 
in  hostile  expeditions  thither  is  great,  despite  the  unquestioned  vigi- 
lance of  this  Government  to  maintain  its  duty  and  the  efforts  wit  h  which 
the  approaches  to  the  island  have  been  guarded  by  the  Spanish  cruis- 
ers. The  said  proximity  has  led  Cubans  and  others,  partisans  of  the 
insurgents,  to  take  up  their  abode  in  the  United  States,  actuated  by 
the  hope  that  that  proximity  would  enable  them  advantageously  to  plot 
and  act  for  the  advancement  of  their  cause  in  the  island.  We  certainly 
have  reason  to  expect  that  the  great  strain  upon  our  watchfulness  to 
thwart  those  schemes  occasioned  by  the  long  duration  of  hostilities  in 
Cuba,  should  have  some  termination  through  a  cessation  of  the  cause 
which  hitherto  has  been  supposed  to  make  it  necessary  for  the  discharge 
of  our  duties  as  a  neutral. 

"Ever  since  the  insurrection  began,  we  have  repeatedly  been  called 
upon  to  discharge  those  duties.  In  the  performance  of  them  we  are 
conscious  of  no  neglect,  but  the  trial  to  our  impartiality  by  the  want  of 
success  on  the  part  of  Spain  in  supj)ressing  the  revolt  is  necessarily  so 
severe  that  unless  slie  shall  soon  be  more  successful  it  will  force  upon 
this  Government  the  consideration  of  the  question,  whether  duty  to 
itself  and  to  the  commercial  interests  of  its  citizens  may  not  deman<l 
some  change  in  the  line  of  action  it  has  thus  far  pursued. 

"It  is  intimated,  and  is  probably  true,  that  the  corruption  which  is 
more  or  less  inseparable  from  such  protracted  contests  is  itself  a  prin- 
cipal agent  in  prolonging  hostilities  in  Cuba.  The  extortions  incident 
to  furnishing  supplies  for  the  troops,  the  hope  of  sharing  in  the  j)ro- 
ceeds  of  insurgent  or  alleged  insurgent  property,  would,  of  course,  be 
put  an  end  to  by  the  restoration  of  tranquillity.  These  must  be  power- 
ful agencies  in  fettering  the  arm  which  ought  to  strike  home  for  i)eace, 
for  order,  and  the  quiet  enjoyment  of  the  citizen.  It  is  reasonable  to 
suppose,  too,  that  the  saving  of  the  public  money  which  must  result 
from  a  termination  of  the  conflict  would  alone  be  a  sufficient  incen- 
tive for  a  patriotic  Government  to  exert  itself  to  the  utmost  for  that 
purpose. 

392 


CHAP.  III.]  CUBA.  [§  60. 

"  Besides  a  measure  for  the  abolition  of  slavery,  and  assurances  of  the 
speedy  termination  of  the  contest  in  Cuba,  we  have  been  assured  that 
extensive  inuniciijal  reforms  would  be  introduced  in  the  colonies,  and 
that  their  government  would  be  liberalized.  Certainly  the  Spanish  Gov- 
ernment, with  its  experience  of  the  past,  and  with  the  knowledge  which 
it  cannot  fail  to  have  of  the  tendencies  of  the  age,  can  never  exi)ect 
peaceably  to  maintain  the  ancient  colonial  system  in  those  islands.  Tiie 
abuses  of  that  system  press  heavily  upon  the  numerous  educated  natives 
of  the  same  race,  and,  if  not  reformed,  must  be  a  constant  source  of 
bitter  antipathy  to  the  mother  country.  The  repeated  assurances  of  the 
intention  of  the  Government  to  abolish  slavery  and  to  grant  liberal  re- 
forms in  the  administration  of  the  island,  are  admissions  by  Spain  of 
the  wrong  of  slavery,  and  of  the  existence  of  evils  which  need  reform, 
but  are  still  allowed  on  the  illogical  and  indefensible  ground  that  con- 
cession cannot  be  made  while  resistance  continues. 

"A  nation  gives  justification  to  resistance  while  admitted  wrongs 
remain  unredressed;  resistance  ceases  to  be  justifiable  when  no  wrongs 
are  either  admitted  or  alleged.  Eedress  wrongs  and  resistance  will 
cease. 

"  Spain  is  too  great  a  power  to  fear  to  do  what  she  admits  to  be  right, 
because  it  is  asked  vehemently ;  or  because  its  attainment  is  sought 
improperly,  she  need  not  apprehend  that  the  reforming  of  abuses  and 
of  wrongs,  which  she  admits  to  exist,  and  declares  herself  ready  to  cor- 
rect, will  be  attributed  to  an  unworthy  motive,  while  delay  in  removing 
admitted  wrongs  which  it  is  within  her  power  to  remove  places  her  in  a 
false  position,  and  goes  far  to  justify  and  to  attract  sympathy  to  those 
who  are  sufferers  from  the  unredressed  wrongs. 

"  Spain  itself  has  been  the  scene  of  civil  commotion,  but  prisoners 
taken  in  arms  have  not  been  jiut  to  death  as  they  are  in  Cuba,  nor  have 
amnesties  been  regarded  as  dangerous  in  the  peninsula ;  why  should 
they  be  so  regarded  in  the  colonies  I  or  why  should  concessions  be  dis- 
honorable in  Cuba  that  are  not  so  considered  at  home?  The  suggestion 
that  they  would  be  is  the  offspring  of  the  selfishness  of  those  interested 
in  prolonging  the  contest  for  private  gain. 

"A  just,  lenient,  and  humane  policy  toward  Cuba,  if  it  would  not  bring 
quiet  and  order  and  contentedness,  would  at  least  modify  the  judg- 
ment of  the  world  that  most  of  the  evils  of  which  Cuba  is  the  scene  are 
the  necessary  results  of  harsh  treatment,  and  of  the  maladministration 
of  the  colonial  government. 

"  You  are  aware  that  many  citizens  of  the  United  States,  owners  of 
estates  in  Cuba,  have  suftered  injury  by  the  causeless  seizure,  in  viola- 
tion of  treaty  obligations,  of  those  estates,  and  by  the  appropriation  of 
their  proceeds  by  those  into  whose  hands  they  had  fallen.  Though  in 
some  one  or  two  instances  the  property  has  been  ordered  to  be  restored, 
so  iiar  there  has  been  no  indemnification  for  the  damage  sustaincil.  In 
other  instances,  where   restitution   has    been    promised,    it    \n\s  lu'en 

393 


§  60.]  INTERVENTION.  [CHAP.  III. 

evaded  and  put  off  in  a  way  which  cannot  fail  to  excite  the  just  resent- 
ment of  the  sufferers  and  of  their  Government,  whose  duty  it  is  to  pro- 
tect their  interests. 

"Tlie  decree  of  31st  August  last,  prescribing  regulations  for  the 
proceedings  concerning  sequestrated  property  in  Cuba,  so  far  as  it 
recognized  the  embargo  or  confiscation  of  the  property  of  those  charged 
with  complicity  in  the  insurrection,  as  a  judicial  proceeding,  in  which 
the  parties  are  entitled  to  be  fairly  heard,  may  be  regarded  as  a  con- 
cession to  the  frequent  remonstrances  of  this  Government,  as  well  as  to 
the  requirements  of  justice.  But,  unless  the  action  of  the  board  to  be 
constituted  under  that  decree  exhibit  a  very  different  measure  of 
promptness  and  of  activity  from  that  which  has  been  given  to  the 
remonstrances  of  this  Government  against  the  proceedings  whereby  the 
property  of  citizens  of  the  United  States  has  heretofore  been  seized,  the 
organization  of  the  board  will  serve  only  to  increase  the  very  just  causes 
of  complaint  of  this  Government.  It  is  hoped  that  it  will  not  be 
allowed  to  become  the  means  or  the  excuse  of  further  procrastination,  or 
of  delaying  beyond  the  extremest  limits  of  patience,  which  have  already 
been  reached,  the  decision  upon  the  many  cases  which  have  been  the 
subject  of  i^rotracted  diplomatic  correspondence.  There  will  readily 
occur  to  you  several  cases,  which  need  not  be  specifically  enumerated, 
which  have  been  referred  backward  and  forward  between  Madrid  and 
Havana  to  the  very  verge  of  the  exhaustion  of  all  patience.  In  the 
mean  time,  the  property  of  citizens  of  the  United  States  has  been  held 
in  violation  of  the  treaty  between  this  country  and  Spain. 

"In  some  of  these  cases  you  have  been  promised  the  release  of  the 
embargo.  It  is  expected  that  the  tardy  redress  thus  promised  will  not 
be  further  delayed  by  any  alleged  necessity  of  reference  to  this  newly 
constituted  board. 

"  It  is  hoped  that  you  will  present  the  views  above  set  forth,  and  the 
])resent  grievances  of  which  this  Government^o  justly  complains,  to  the 
Government  to  which  you  are  accredited,  in  a  way  which,  without  giv- 
ing offense,  will  leave  a  conviction  that  we  are  in  earnest  in  the  expres- 
sion of  those  views,  and  that  we  expect  redress,  and  that  if  it  should 
not  soon  be  afforded  Spain  must  not  be  surprised  to  find,  as  the  inevi- 
table result  of  the  delay,  a  marked  change  in  the  feeling  and  in  the 
temper  of  the  people  and  of  the  Government  of  the  United  States. 
Believing  that  the  present  ministry  of  Spain  is  in  a  suflBciently  con- 
firmed position  of  power  to  carry  out  the  measures  which  it  announces, 
and  the  reforms  which  have  been  promised,  and  to  do  justice  by  the  re- 
moval of  the  causes  of  our  well-founded  complaints,  and  not  doubting 
the  sincerity  of  the  assurances  which  have  been  given,  the  United 
States  look  confidently  for  the  realization  of  those  hopes  which  have 
been  encouraged  by  repeatedpromises  that  all  causes  for  estrangement, 
or  for  the  interruption  of  those  friendly  feelings  which  are  traditional, 
394 


CHAP.  III.]  CUBA.  [§  60. 

as  tliey  are  sincere,  on  the  part  of  this  Government  toward  Spain,  will 
be  speedily  and  forever  removed." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Oct.  29,  1872.     MSS.  Inst.,  Spain;  For. 
Rel.,  1872. 

In  1873  Mr.  Fish  instructed  Mr.  Bancroft,  then  at  Berlin,  to  use  his 
"  best  endeavors  to  secure  from  the  German  Government  such  instruc- 
tions to  its  minister  at  Madrid  as  may  enable  him  to  make  a  simulta- 
neous, if  not  identical,  application  to  the  Spanish  Government  in  support 
of  the  desired  change,"  in  certain  oppressive  tariff  laws  of  Cuba  sub- 
jecting goods  on  which  there  are  fines  to  such  fines,  and  not  the  vessels 
which  import  them. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bancroft,  Mar.  22,  1873.     MSS.  Inst.,  Germ.  ;  For. 
Rel.,  1873. 

"  Your  dispatches  No.  670  and  672,  of  the  respective  dates  of  the 
27th  and  31st  July,  are  not  calculated  to  command  confidence  in  the 
expectation  of  a  satisfactory  settlement  of  the  troubles  in  which  Spain 
finds  herself  involved  either  in  respect  to  her  internal  or  colonial  affairs 
or  her  relations  with  other  powers.  As  to  the  former,  we  can  but  sin- 
cerely regret  that  the  effort  to  establish  a  republican  form  of  govern- 
ment does  not  give  greater  promise  of  success.  The  United  States 
promptly  and  cordially  extended  its  recognition  and  the  moral  effects 
of  its  sympathy  to  the  new  Government.  It  has  further  manifested  its 
friendly  interest  by  abstaining  from  insistance  in  the  presentation  of 
complaints  on  account  of  the  frequent  failure  of  compliance  with  as- 
surance of  intended  reforms  in  the  government  of  Cuba,  and  of  the 
reparation  o«  wrongs  to  the  persons  and  property  of  American  citizens. 

"  Recent  information  from  Havana  shows  that  the  decree  for  the  re- 
lease of  embargoed  estates  had  not  at  a  very  late  date  been  proclaimed, 
and  that  influences  seemed  to  be  at  work  to  induce  the  withholding  of 
the  publication  and  the  consequent  nullification  of  the  decree.    *     *     * 

'•The  President  has  heard  with  deep  concern  and  regret  the  announce- 
ment, said  to  be  made  by  a  member  of  the  ministry  of  Spain,  that  no 
reforms  will  be  granted,  and  no  notice  taken  of  the  demands  of  the  in- 
surgents in  Cuba,  so  long  as  they  do  not  lay  down  their  arms.    *    *    * 

"  In  the  interest  of  Spain,  no  less  than  in  that  of  Cuba,  in  the  interest 
of  the  United  States,  in  the  interest  of  humanity,  the  President  hopes 
that  such  may  not  be  the  determination  of  Spain,  and  you  Avill  not  foil 
to  urge  upon  the  ministry  the  tendency  of  such  policy,  and  the  im- 
portance in  the  direction  of  pacification,  and  to  the  arrest  of  the  further 
destruction  of  property  and  waste  of  human  life,  of  the  disavowal  or 
abandonment  of  a  policy  so  inconsistent  with  a  possibility  of  a  restora- 
tion of  peace.    *     *     * 

"It  is  therefore  that  it  appears  to  us,  as  friends  of  Spain,  of  urgent 
importance  that  Spain,  in  the  exercise  of  her  historic  wisdom,  voluntarily 
recall  the  inconsiderate  declaration  of  a  minister  (if,  indeed,  it  were 

395 


§  60.]  INTERVENTION.  [CHAP.  III. 

luadc)  tluit  the  granting  of  reforms  to  Cuba  will  not  be  entertained 
while  the  insurrection  lasts,  and  the  President  desires  that  3'ou  iinpress 
in  a  friendly  and  delicate  way  the  i^aramouut  importance  of  action  ratlier 
than  i)romise  in  the  direction  of  reforms  of  which  the  wisdom  of  the 
Government  at  Madrid  have  more  than  once  recognized  the  propriety." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Aug.  27,  1873.    MSS.  Inst.,  Spain  ;  Foi'. 
Rel.,  1873. 

"  Whatever  general  instructions  you  may  need  at  the  ])resent  time 
for  3"our  guidance  in  representing  this  Government  at  Madrid  have  rat'- 
erence  entirely  to  the  actual  state  of  the  Island  of  Cuba  and  its  relation 
to  the  United  States  as  well  as  to  Spain. 

"It  is  now  more  than  five  years  since  an  organized  body  of  the  in- 
habitants of  that  island  assembled  at  Yara,  issued  a  declaration  of  inde- 
pendence, and  took  up  arms  to  maintain  the  declaration.  The  move- 
ment rapidly  spread,  so  as  to  occupy  extensive  regions  of  the  eastern 
and  central  portions  of  the  island,  and  all  the  resources  of  the  Spanish 
Government  have  been  exerted  ineffectually  to  suppress  the  revolution 
and  reclaim  the  districts  in  insurrection  to  the  authority  of  Spain.  The 
prosecution  of  the  war  on  both  sides  has  given  rise  to  many  questions, 
seriously  affecting  the  interests  and  the  honor  of  the  United  States, 
which  have  become  the  subject  of  diplomatic  discussion  between  this 
Government  and  that  of  Spain. 

"You  Avill  receive  herewith  a  selection,  in  chronological  order,  of  the 
numerous  dispatches  in  this  relation  which  have  passed  between  the 
two  Governments.  From  these  documents  you  will  derive  ample  infor- 
mation, not  only  respecting  special  questions  which  have  arisen  from 
time  to  time,  but  also  respecting  the  general  purposes  and  policy  of  the 
President  in  the  premises. 

"Those  purposes  and  that  policy,  as  indicated  in  the  accompanying 
documents,  have  continued  to  be  substantially  the  same  during  the 
whole  period  of  these  events,  except  in  so  far  as  they  may  have  been 
modified  by  special  circumstances,  seemin;:  to  impart  greater  or  less 
prominence  to  the  various  aspects  of  the  general  question,  and  thus, 
without  producing  any  change  of  principle,  yet,  according  to  the  i)ar- 
ticular  emergency,  to  direct  the  action  of  the  United  States. 

"It  will  suffice,  therefore,  on  the  present  occasion,  first,  briefly  to  state 
these  general  views  of  the  President;  and,  secondly,  to  show  their  aj)- 
l)lication  to  the  several  incidents  of  this  desperate  struggle  on  the  .part 
of  the  Cubans  to  acquire  independence  and  of  Spain  to  maintaiii  her 
sovereignty,  in  so  far  as  those  incidents  have  immediately  affected  the 
United  States. 

"Cuba  is  the  largest  insular  possession  still  retained  by  any  p]nr()i)ean 

])ower  in  Ainerica.     It  is  almost  contiguous  to  the  United  States.     It  is 

]>re-eminently  fertile  in  the  production  of  objects  of  commerce  which  are 

of  constant  demand  in  this  country,  and,  with  just  regulations  for  lecip- 

396 


CHAP.  III.]  CUBA.  [§  60. 

rocal  interchauge  of  commodities,  it  would  aflord  a  large  and  lucrative 
market  for  tbe  productions  of  this  country.  Commercially,  as  well  as 
geographically,  it  is  by  nature  more  closely  connected  with  the  United 
States  than  with  Spain. 

"Civil  dissensions  in  Cuba,  and  especially  sanguinary  hostilities,  such 
as  are  now  raging  there,  produce  effects  in  the  United  States  second  in 
gravity  onlj^  to  those  which  they  produce  in  Spain. 

"Meanwhile  our  political  relation  to  Cuba  is  altogether  anomalous, 
seeing  that  for  any  injury  done  to  the  United  States  or  their  citizens  in 
Cuba  we  have  no  direct  means  of  redress  there,  and  can  obtain  it  only 
by  slow  and  circuitous  action  by  way  of  Madrid.  The  captain-general 
of  Cuba  has,  in  effect,  by  the  laws  of  Spain,  supreme  and  absolute  au- 
thority there  for  all  purposes  of  wrong  to  our  citizens;  but  this  Govern- 
ment has  no  adequate  means  of  demanding  immediate  reparation  of 
such  wrongs  on  the  spot,  except  through  a  consul,  who  does  not  i)0ssess 
diplomatic  character,  and  to  whose  representations,  therefore,  the 
captain  general  may,  if  he  choose,  absolutely  refuse  to  listen.  And, 
grievous  as  this  inconvenience  is  to  the  United  States  in  ordinary  times 
it  is  more  intolerable  now,  seeing  that,  as  abundantly  appears,  the  contest 
in  Cuba  is  between  penins  ular  Spaniards  on  the  one  hand  and  native- 
born  Spanish-Americans  on  the  other;  the  former  being  the  real  repre- 
sentatives of  Spanish  force  in  Cuba,  and  exerting  that  force  when  they 
choose,  with  little,  if  any,  respect  for  the  metropolitan  power  of  Spain. 
The  captain-general  is  efficient  to  injure  but  not  to  redress,  and  if  dis- 
posed to  redress,  he  may  be  hampered,  if  not  prevented,  by  resolute  op- 
position on  the  i)art  of  the  Spaniards  around  him,  disobedient  alike  to 
him  and  to  the  supreme  Government. 

"In  fine,  Cuba,  like  the  former  continental  colonies  of  Spain  in  Amer- 
ica, ought  to  belong  to  the  great  family  of  American  Eepublics,  with 
political  forms  and  public  policy  of  their  own,  and  attached  to  Europe 
by  no  ties  save  those  of  international  amity,  and  of  intellectual,  com- 
mercial, and  social  intercourse.  The  desire  of  independence  on  the  part 
of  the  Cubans  is  a  natural  and  legitimate  aspiration  of  theirs,  because 
they  are  Americans.  And  while  such  independence  is  the  manifest  ex- 
igency of  the  political  interests  of  the  Cubans  themselves,  it  is  equally 
so  that  of  the  rest  of  America,  including  the  United  States. 

"That  the  ultimate  issue  of  events  in  Cuba  will  be  its  independence, 
however  that  issue  may  be  produced,  whether  by  means  of  negotiation, 
or  as  the  result  of  military  operations  or  of  one  of  those  unexpected  in- 
cidents which  so  frequently  determine  the  fate  of  nations,  it  is  impossi- 
ble to  doubt.  If  there  be  one  lesson  in  history  more  cogent  in  its  teach- 
ings than  any  other,  it  is  that  no  part  of  America  large  enough  to  con- 
stitute a  self-sustaining  state  can  be  permanently  held  in  forced  colonial 
subjection  to  Europe.  Complete  separation  between  the  metropolis  and 
its  colony  may  be  postponed  by  the  former  conceding  to  the  latter  a 
greater  or  less  degree  of  local  autonomy,  nearly  approaching  to  inde- 

397 


§  ()0.]  INTERVENTION.  [CHAP.  III. 

pendence.  But  iu  all  cases  where  a  positive  antagonism  has  come  to 
exist  between  the  mother  country  and  its  colonial  subjects,  where  the 
sense  of  oppression  is  strongly  felt  by  the  latter,  and  especially  where 
years  of  relentless  warfare  have  alienated  the  parties  one  from  another 
more  widely  than  they  are  sundered  by  the  ocean  itself,  their  political 
separation  is  inevitable.  It  is  one  of  those  conclusions  which  have  been 
aptly  called  the  inexorable  logic  of  events. 

"  Entertainiug  these  views,  the  President  at  an  early  day  tendered  to 
the  Spanish  Government  the  good  offices  of  the  United  States  for  the 
purpose  of  efiecting,  by  negotiation,  the  peaceful  separation  of  Cuba 
from  Spain,  and  tlius  putting  a  stop  to  the  further  effusion  of  blood  in 
the  island,  and  relieving  both  Cuba  and  Spain  from  the  calamities  and 
charges  of  a  protracted  civil  war,  and  of  delivering  the  United  States 
from  the  constant  hazard  of  inconvenient  complications  on  the  side 
either  of  Spain  or  of  Cuba.  But  the  well-intended  proffers  of  the  United 
States  on  that  occasion  were  unwisely  rejected  by  Spain,  and,  as  it  was 
then  already  foreseen,  the  struggle  has  continued  in  Cuba,  with  inci- 
dents of  desperate  tenacity  on  the  part  of  the  Cubans,  and  of  argry 
fierceness  on  the  part  of  the  Spaniards,  unparalleled  in  the  annals  of 
modern  warfare. 

"  True  it  is  that  now,  when  the  war  has  raged  for  more-than  five  years 
there  is  no  material  change  in  the  military  situation.  The  Cubans  con- 
tinue to  occup3',  unsubdued,  the  eastern  and  central  parts  of  the  island, 
with  exception  of  the  larger  cities  or  towns,  and  of  fortified  points  held 
by  the  Government,  but  their  capacity  of  resistance  appears  to  be  un- 
diminished, and  with  no  abatement  of  their  resolution  to  persevere  to 
the  end  in  repelling  the  denomination  of  Spain. 

"  Meanwhile  this  condition  of  things  grows,  day  by  day,  more  and 
more  insupportable  to  the  United  States.  The  Government  is  compelled 
to  exert  constantly  the  utmost  vigilance  to  i)revent  infringement  of  our 
law  on  the  part  of  Cubans  purchasing  munitions  or  materials  of  war, 
or  laboring  to  fit  out  military  expeditions  iu  our  ports;  we  are  con- 
strained to  maintain  a  large  naval  force  to  prevent  violations  of  our 
sovereignty,  either  by  the  Cubans  or  the  Spaniards  ;  our  people  are  hor- 
rified and  agitated  by  the  spectacle,  at  our  very  doors,  of  war,  not  only 
with  all  its  ordinary  attendants  of  devastation  and  carnage,  but  with 
accompaniments  of  barbarous  shooting  of  prisoners  of  war,  or  their 
summary  execution  by  military  commissions,  to  the  scandal  and  dis 
grace  of  the  age ;  we  are  under  the  necessity  of  interposing  continually 
for  the  protection  of  our  citizens  against  wrongful  acts  of  the  local  au- 
thorities of  Spain  in  Cuba;  and  the  ijublic  peace  is  every  moment  sub- 
ject to  be  interrupted  by  some  nnforeseen  event,  like  that  which  re- 
cently occurred,  to  drive  us  at  once  to  the  brink  of  war  with  Spain.  In 
short,  the  state  of  Cuba  is  the  one  great  cause  of  perpetual  solicitude  in 
the  foreign  relations  of  the  United  States. 
398 


CHAP.  III.]  CUBA.  [§  60. 

"  While  the  attention  of  this  Government  is  fixed  on  Cuba,  in  the  in- 
terest of  humanity,  by  the  horrors  of  civil  war  prevailing?  there,  we  cannot 
forbear  to  reflect,  as  well  in  the  interest  of  humanity  as  in  other  rela- 
tions, that  the  existence  of  slave  labor  in  Cuba,  and  its  influence  over 
the  feelings  and  interests  of  the  peninsular  Spaniards,  lie  at  th«  founda- 
tion of  all  the  calamities  which  now  afflict  the  island.  Except  in  Brazil 
and  in  Cuba,  servitude  has  almost  disappeared  from  the  world.  Not  in 
the  Spanish-American  Republics  alone,  nor  in  the  British  possessions, 
nor  in  the  United  States,  nor  in  Russia,  not  in  those  countries  alone, 
but  even  in  Asia,  and  in  Africa  herself,  the  bonds  of  the  slave  have  been 
struck  oft",  and  personal  freedom  is  the  all  but  universal  rule  and  public 
law,  at  least  to  the  nations  of  Christendom.  It  cannot  long  continue  in 
Cuba,  environed  as  that  island  is  by  communities  of  emancipated  slaves 
in  the  other  West  India  Islands  and  in  the  United  States. 

"  Whether  it  shall  be  put  an  end  to  by  the  voluntary  act  of  the  Span- 
ish Government,  by  domestic  violence,  or  by  the  success  of  the  revolu- 
tion of  Yara,  or  by  what  other  possible  means,  is  one  of  the  grave  prob- 
lems of  the  situation,  of  hardly  less  interest  to  the  United  States  than 
the  independence  of  Cuba. 

"  The  President  has  not  been  without  hope  that  all  these  questions 
might  be  settled  by  the  spontaneous  act  of  Spain  herself,  she  beingmore 
deeply  interested  in  that  settlement  than  all  the  rest  of  the  world.  It 
seemed  for  awhile  that  such  a  solution  was  at  hand,  during  the  time 
when  the  Government  of  Spain  was  administered  by  one  of  the  greatest 
and  wisest  of  the  statesmen  of  that  country,  or  indeed  of  Europe,  Presi- 
dent Castelar.  Before  attaining  power,  he  had  announced  a  line  of 
policy  applicable  to  Cuba,  which,  though  falling  short  of  the  concession 
of  absolute  independence,  yet  was  of  a  nature  to  command  the  appro- 
bation of  the  United  States. 

"  '  Let  us,'  he  declared,  on  a  memorable  occasion,  '  let  us  reduce  to 
formulas  our  policy  in  America. 

"  '  First,  the  immediate  abolition  of  slavery. 

"  '  Secondly,  autonomy  of  the  islands  of  Puerto  Rico  and  Cuba,  which 
shall  have  a  parliamentary  assembly  of  their  own,  their  own  adminis- 
tration, their  own  government,  and  a  federal  tie  to  unite  them  with 
Spain  as  Canada  is  united  with  England,"  in  order  that  we  may  found 
the  liberty  of  those  states  and  at  the  same  time  conserve  the  national 
integrity.  I  desire  that  the  islands  of  Cuba  and  Puerto  Rico  shall 
be  our  sisters,  and  I  do  not  desire  that  they  shall  be  transatlantic  Po- 
lands.' 

"  I  repeat  that  to  such  a  line  of  policy  as  this,  especially  as  it  relates 
to  Cuba,  the  United  States  would  make  no  objection  ;  nay,  they  could 
accord  to  it  hearty  co-operation  and  support,  as  the  next  best  thing  to 
the  absolute  independence  of  Cuba. 

399 


§  60.]  INTERVENTION.  [CHAP.  III. 

"Ofcoui.NC  the  United  States  would  prefer  to  see  all  that  reinaiDS  of 
colonial  America  pass  from  that  condition  to  the  condition  of  absolute 
independence  of  Europe. 

"But  we  might  well  accept  such  a  solution  of  present  questions  as, 
while  tefminatiug:  the  cruel  war  which  now  desolates  the  island  and  dis- 
turbs our  political  intercourse,  should  primarily  and  at  the  outset  abol- 
ish the  iniquitous  institution  of  slavery,  and,  in  the.  second  place,  should 
place  Cuba  practically  in  the  possession  of  herself  by  means  of  political 
institutions  of  self-government,  and  enable  her,  while  nominally  subject 
to  Spain,  yet  to  cease  to  be  the  victim  of  Spanish  colonial  interests,  and 
to  be  capable  of  direct  and  immediate  relations  of  interests  and  inter- 
course with  the  other  states  of  America.     *     *     * 

"  In  these  circumstances,  the  question  what  decision  the  CJnited 
States  shall  take  is  a  serious  and  difficult  one,  not  to  be  determined 
without  careful  consideration  of  its  complex  elements  of  domestic  and 
foreign  policy,  but  the  determination  of  which  may  at  any  moment  be 
forced  upon  us  by  occurrences  either  in  Spain  or  in  Cuba. 

"  Withal  the  President  cannot  but  regard  independence,  and  emanci- 
pation, of  course,  as  the  only  certain,  and  even  the  necessary,  solution 
of  the  question  of  Cuba.  And,  in  his  mind,  all  incidental  questions  are 
quite  subordinate  to  those,  the  larger  objects  of  the  United  States  in 
this  respect. 

"  It  requires  to  be  borne  in  mind  that,  in  so  far  as  we  may  contribute 
to  the  solution  of  these  questions,  this  Government  is  not  actuated  by 
any  selfish  or  interested  motive.  The  President  does  not  meditate  or 
desire  the  annexation  of  Cuba  to  the  United  States,  but  its  elevation 
into  an  independent  Eepublic  of  freemen,  in  harmony  with  ourselves 
and  with  the  other  Eepublics  of  America. 

"  You  will  understand,  therefore,  that  the  policy  of  the  United  States 
in  reference  to  Cuba  at  the  present  time  is  one  of  expectancy,  but  with 
positive  and  fixed  convictions  as  to  the  duty  of  the  United  States  when 
the  time  or  emergency  of  action  shall  arrive.  When  it  shall  ariive,  you 
will  receive  specific  instructions  what  to  do.  Meantime,  instructed  as 
you  now  are  as  to  the  intimate  purposes  of  the  Government,  you  are  to 
act  in  conformity  therewith  in  the  absence  of  any  specific  instructions, 
and  to  comport  yourself  accordingly  in  all  your  communications  and 
intercourse,  official  or  unofficial,  with  persons  or  i)ublic  men  in  Spain. 

"In  conclusion,  it  remains  to  be  said  that,  in  accordance  with  the  es- 
tablished policy  of  the  United  States  in  such  cases,  as  exemplified  in 
the  many  changes  of  government  in  France  during  the  last  eighty  years. 
and  in  the  Mexican  Republic  since  the  time  of  its  first  recognition  by 
us,  and  in  other  cases  which  have  oc(;urred  in  Europe  and  America,  you 
will  present  your  credentials  to  the  persons  or  authorities  whom  you 
may  find  in  the  actual  exercise  of  the  Executive  power  of  Spain. 

"  The  President  has  not,  as  yet,  received  any  official  notice  of  the 
termination  of  the  authority  of  President  Castelar  and  the  accession  of 
400 


CHAP.  III.]  CUBA.  [§  60. 

President  Serrauo,  and,  of  course,  we  have  no  precise  information  as  to 
the  intention  or  views  of  the  new  executive  of  the  Spanish  Republic. 

"While  we  cannot  expect  from  him  any  more  hearty  friendship  for 
the  United  States  than  his  predecessor  entertained,  it  is  to  be  hoped 
that  he  may  not  be  moved  by  any  unfriendly  sentiments  toward  us.  If, 
however,  such  should,  unhai)pily,  prove  to  be  the  case,  it  would  be  all 
the  more  necessary  that  you  should  be  vigilantly  watchful  to  detect  and 
report  anj-  signs  of  possible  action  in  Spain  to  the  prejudice  of  the 
United  States." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Gushing,  Feb.  6,  1874.    MSS.  Inst.,  Spain  ;   For. 
Eel.,  1874. 

"The  attention  of  this  Government  has  been  frequently  called  by 
citizens  of  the  United  States  to  the  wrong  done  them  in  the  embargo 
of  their  property  by  the  colonial  authorities  of  Cuba  for  alleged  dis- 
loyalty, in  virtue  of  a  decree  of  Ajiril  20,  18G9.  Their  estates  have  been 
seized  by  arbitrary  executive  act,  without  judicial  hearing  or  judgment, 
and  in  manifest  violation  of  the  provisions  of  the  treaty  of  1795.  In 
many  instances  the  seizure  has  been  made  with  such  improvidence  and 
want  of  consideration,  tliat  the  property  of  one  person  has  been  seized 
for  the  alleged  otfeuse  of  another.  Promises  were  made,  from  time  to 
time,  to  release  some  of  these  estates,  which  promises  were  evaded  or 
deferred  for  insufficient  reasons.  In  some  cases,  after  promise  had  been 
given  to  disembargothe  ])roperty,  it  was  leased  to  strangers  for  a  series 
of  years,  so  as  to  render  the  order  of  disembargo  ineffectual,  and  to  con- 
tinue to  deprive  the  owner  of  the  possession  and  use  of  his  property. 

"  Of  course,  no  relief  in  the  premises  could  be  obtained  by  the  action 
of  the  Mixed  Commission  sitting  at  Washington,  and  this  Department 
continually  insisted  that  the  ])roperty  itself  should  be  restored  to  the 
owners  by  the  same  executive  authority  which  made  the  seizure,  leav- 
ing only  the  question  of  resulting  damages  to  the  consideration  of  the 
Commission. 

"  You  are  referred  to  the  frequent  and  earnest  instructions  to  your 
predecessor  with  regard  to  these  cases.  After  various  repeated  and  ur- 
gent remonstrances,  the  late  Government  of  Spain,  on  the  12th  of  July, 
1873,  on  the  recommendation  of  the  minister  of  the  colonies,  setting 
forth  the  illegality  of  these  acts  of  sequestration,  their  injustice  to  the 
parties  interested,  and  their  injuriousness  even  to  the  public  interests, 
all  embargoes  put  upon  thei)roperty  of  alleged  disloyal  persons  in  Cuba 
were  declared  removed  from  the  date  when  the  decree  should  reach" the 
capital ;  it  W' as  ordered  that  all  property  disembargoed  should  be  forth- 
with delivered  up  to  its  owners  or  their  legal  representatives;  and  a 
commission  was  appointed  to  hear  and  decide  summarily  ui)on  sill  such 
applications  as  might  be  made  by  the  interested  ])arties. 

"  Notwithstanding  the  imperative  character  of  this  decree,  no  regard 
was  paid  to  it  in  Cuba  for  a  length  of  time ;  it  was  not  officially  i)ub- 

S.  Mis.  1C2— VOL.  I 2f>  40X 


§  60.]  INTERVENTION.  [CHAP.  III. 

lisbed  there,  and  the  authorities  at  Havana  even  proceeded  to  advertise 
for  sale  embargoed  property  belonging-  to  citizens  of  the  United  States. 
These  instances  led  to  further  remonstrances  on  the  part  of  the  United 
States. 

"At  length,  contemporaneously  with  the  official  visit  of  Seuor  Soler  y 
Pla,  minister  of  ultramar,  to  Cuba,  partial  execution  was  given  to  the 
decree  of  July  12,  1873,  in  so  far  as  it  applied  to  several  of  the  parties 
named  in  a  list  communicated  to  the  Spanish  Government  by  this  De- 
partment. 

^  It  is  now  learned  that  in  the  case  of  some  of  the  estates  covered  by 
that  decree,  and  ordered  by  the  commission  to  be  delivered  to  the  own- 
ers, delivery  is  obstructed  on  the  allegation  that  the  estates  are  subject 
to  leases  to  third  parties  for  a  series  of  years,  by  which  the  owners  are 
not  only  deprived  of  the  actual  possession  of  their  property,  and  of  the 
income  which  it  would  yield  in  their  hands,  but  the  property  itself  is 
undergoing  waste  and  depreciation.  ' 

"The  leases  which  are  thus  interposed  as  a  justification  for  continu- 
ing to  disregard  the  decree  of  the  home  Government  and  the  assurances 
given  to  this  Government,  and  in  continued  violation  of  the  rights  of 
our  citizens,  are  understood  to  be  leases  given  by  some  pretended 
authority  subsequent  to  the  act  of  embargo. 

"  In  some  cases  (that  of  Eamon  Fernandez  Criado  y  Gomez,  for  in- 
stance), it  appears  that  the  authorities  claim  that  the  property  was  un- 
der judicial  embargo  and  finally  confiscated. 

"  The  chronological  series  of  papers  which  accompany  my  Xo.  2,  of 
even  date  with  this,  contain  copies  of  the  correspondence,  telegraphic 
and  otherwise,  on  this  subject  between  this  Department  and  its  agents 
and  the  Spanish  authorities.  On  examining  it,  you  will  find  that  the 
Spanish  Government  has  practically  admitted  that  the  seizure  and  re- 
tention of  these  estates  was  a  violation  of  the  rights  of  the  proprietors. 

"  You  will  therefore  make"it  your  first  duty  after  your  credentials  are 
presented  in  Madrid,  to  represent  to  the  Government  there,  courteously 
but  firmly,  that  the  President  expects  to  see  the  estates  of  American 
citizens  which  have  been  seized  in  Cuba  in  violation  of  the  provisions 
of  the  treaty  of  1795,  whether  by  embargo  or  by  confiscation,  restored 
to  them  without  further  delay,  and  without  any  incumbrance  imposed 
by  Spanish  authority  in  Cuba. 

"  He  does  not  question  the  willingness  of  the  authorities  at  Madrid 
to  comply  with  these  expectations.  It  will  be  your  duty,  while  giving 
assurances  of  our  convictions  of  the  good- will  of  the  Spanish  Govern- 
ment in  this  respect,  to  leave  no  .doubt  of  our  expectations  that  it  will 
find  means  to  compel  its  insubordinate  agents  in  Cuba  to  carry  into  exe- 
cution its  agreements  with  this  Government  res])ecting  these  estates." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cnshiiij.-,  Feh.G,  1874.    MSS.  Inst.,  Spaiu ;   For. 
Rel.,  1«74. 

402 


CHAP.  III.]  CUBA.  [§  60. 

''The  deplorable  strife  in  Cuba  continues  without  any  marked  change 
in  the  relative  advantages  of  the  contending'  forces.  The  insurrection 
continues,  but  Spain  has  gained  no  superiority.  Six  years  of  strile  give 
to  the  insurrection  a  significance  which  cannot  be  denied.  Its  duration 
and  the  tenacity  of  its  adherence,  together  with  the  absence  of  mani- 
fested power  of  suppression  on  the  part  of  Spain,  cannot  be  controverted, 
and  may  make  some  positive  steps  on  the  part  of  other  powers  a  matter 
of  self-necessity.  I  had  confidently  hoped  at  this  time  to  be  able  to 
announce  the  arrangement  of  some  of  the  important  questions  between 
this  Government  and  that  of  Spain,  but  the  negotiations  have  been  i)ro- 
tracted.  The  urdiappy  intestine  dissensions  of  Spain  command  our  pro- 
found sympathy,  and  must  be  accepted  as  perhaps  a  cause  of  some 
delay.  An  early  settlement,  in  part  at  least,  of  the  questions  between 
the  Governments  is  hoped.  In  the  mean  time,  awaiting  the  results  of 
immediately  [)euding  negotiations,  I  defer  a  further  and  fuller  commu- 
nication on  the  subject  of  the  relations  of  this  country  and  Spain." 

President  Grant,  Sixth  Annual  Message,  1874. 

"The  Government  of  Great  Britain  may  possibly,  of  its  own  accord, 
think  proper,  in  view  of  its  own  interests,  to  co-operate  with  the  United 
States  in  this  efibrt  to  arrest  a  cruel  war  of  devastation.  This,  how- 
ever, is  a  question  to  be  raised  by  Her  Majesty's  Government.  Hu- 
manity, its  own  great  interests,  and  a  regard  for  the  preservation  of  the 
peace  of  the  world,  it  is  believed,  will,  without  doubt,  lead  it  to  support 
the  position  which  this  Government  has  at  length  been  forced  to  assume, 
and  to  address  its  representatives  in  Madrid  to  that  end." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Schenck,  Nov.  5,  1875.     MSS.  Inst.,  Gr.  Brit. 

"  You  will  read  this  instruction,  266,  or  state  orallj^  the  substance  there- 
of, to  the  minister  of  foreign  affairs  confidentially'  (but  will  not  give  a 
copy  thereof),  and  will  assure  him  of  the  sincere  and  earnest  desire  of 
the  President  for  a  termination  of  the  disastrous  conflict  in  Cuba  by  the 
spontaneous  action  of  Spain,  or  by  the  agreement  of  the  parties  thereto. 

"You  will  further  state  that  the  President  is  of  opinion  that  should 
the  Government  to  which  you  are  accredited  find  it  consistent  with  its 
views  to  urge  upon  Spain  the  importance  and  necessity  of  either  ter- 
minating or  abandoning  this  contest,  which  now  after  a  continuance  of 
seven  years  has  not  advanced  toward  a  prospect  of  success  on  either 
side,  but  which  is  characterized  by  cruelties,  by  violations  of  the  rules 
of  civilized  modern  warfare,  by  pillage,  desolation,  and  wanton  incendia- 
rism, threatening  the  industry,  capacity,  and  production  of  an  extended 
and  fertile  country,  the  friendly  exx^ression  of  such  views  to  Spain 
might  lead  that  Government  to  a  dispassionate  consideration  of  the 
hopelessness  of  the  contest,  and  tend  to  the  earlier  restoration  of  peace 
and  prosperity  to  Cuba,  if  not  to  the  preservation  of  the  peace  of  the 
world. 

403 


§  60.]  INTERVENTION.  [CHAP.  III. 

"Such  a  course  ou  the  part  of  the  Goverumeut  to  >vhich  you  are  ac- 
credited would  be  exceedingly^  satisfactory  to  the  United  States,  and,  in 
the  opinion  of  the  President,  conducive  to  the  interests  of  every  com- 
mercial nation  and  of  humanity  itself." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Orth,  Nov.  15, 1875.     MSS.  Inst.,  Austria. 

"Eead  inclosure  to  805  as  soon  as  opportunity  will  admit.  You  will 
explain  that  intervention  is  not  contemplated  as  an  immediate  resort, 
but  as  a  contingent  necessity  in  case  the  contest  be  prosecuted  and  sat- 
isfactory adjustment  of  existing  griefs  be  not  reached,  and  that  we  sin- 
cerely desire  to  avoid  any  rupture,  and  are  anxious  to  maintain  peace 
and  establish  our  relations  with  Spain  on  a  permanent  basis  of  friend- 
ship. I  now  state,  further,  for  your  own  information  and  for  your  guid- 
ance in  your  interview  with  minister,  that  message  will  discountenance 
recognition  of  belligerency  or  independence ;  will  allude  to  intervention 
as  a  possible  necessity,  but  will  not  advise  its  present  adoption.  Cash- 
ing is  instructed  to  communicate  to  minister  without  waiting  result  of 
your  interview,  but  you  will  communicate  with  him,  in  cipher,  after 
your  interview." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Schenck,  Nov.  27,  1875.     (Telegruui),  MSS.  last., 
Gr.  Brit. 

"  The  past  year  has  furnished  no  evidence  of  an  axiproaching  termina- 
tion of  the  ruinous  conflict  which  has  been  raging  for  seven  years  in 
the  neighboring  Lsland  of  Cuba.  The  same  disregard  of  the  laws  of 
civilized  warfare  and  of  the  just  demands  of  humanity  which  has  here- 
tofore called  forth  expressions  of  condemnation  from  the  nations  of 
Christendom  has  continued  to  blacken  the  sad  scene.  Desolation, 
ruin,  and  pillage  are  pervading  the  rich  fields  of  one  of  the  most  fertile 
and  productive  regions  of  the  earth,  and  the  incendiary's  torch,  tiring 
plantations  and  valuable  factories  and  buildings,  is  the  agent  marking 
the  alternate  advance  or  retreat  of  contending  parties. 

"The  protracted  continuance  of  this  strife  seriously  afiects  the  inter- 
ests of  all  commercial  nations,  but  those  of  the  United  States  more 
than  others,  by  r.ason  of  close  proximity,  its  larger  trade  and  inter- 
course with  Cuba,  and  the  frequent  and  intimate  personal  and  social 
relations  which  have  grown  up  between  its  citizens  and  those  of  the 
island.  Moreover,  the  property  of  our  citizens  in  Cuba  is  large,  and  is 
rendered  insecure  and  depreciated  in  value  and  in  capacity  of  produc- 
tion by  the  continuance  of  the  strife  and  the  unnatural  mode  of  its  con- 
duct. The  same  is  true,  differing  only  in  degree,  with  respect  to  the  in- 
terests and  people  of  other  nations  ;  and  the  absence  of  any  reasonable 
assurance  of  a  near  termination  of  the  conflict  must,  of  necessity,  soon 
compel  the  states  thus  suflering  to  consider  what  the  interests  of  their 
own  poo^de  and  their  duty  toward  themselves  may  demand. 

"  X  have  hoped  that  Spain  would  be  enabled  to  establish  peace  in  her 
colony,  to  afford  security  to  the  property  and  the  interests  of  our  citi- 
zens, and  allow  legitimate  scope  to  trade  and  commerce  and  the  natural 
404 


CHAP.  III.]  CUBA.  [§  60. 

l)rodnction8  of  the  island.  Because  of  this  hope,  and  of  an  extreme 
reluctance  to  interfere  in  the  most  remote  manner  in  the  affairs  of 
another  and  friendly  nation,  especially  of  one  whose  sympathy  and 
friendship  in  the  struggling  infancy  of  our  own  existence  must  ever  be 
remembered  with  gratitude,  I  have  patiently  and  anxiously  waited 
the  progress  of  events.  Our  own  civil  conflict  is  too  recent  for  us 
not  to  consider  the  difficulties  which  surround  a  Government  distracted 
by  a  dynastic  rebellion  at  home,  at  the  same  time  that  it  has  to  cope 
with  a  separate  insurrection  in  a  distant  colony.  But  whatever  causes 
may  have  produced  the  situation  which  so  grievously  affects  our  in- 
terests, it  exists,  with  all  its  attendant  evils  operating  directly  upon 
this  country  and  its  people.  Thus  far  all  the  efforts  of  Spain  have 
proved  abortive,  and  time  has  marked  no  improvement  in  the  situation. 
The  armed  bands  of  either  side  now  occupy  nearly  the  same  ground 
as  in  the  past,  with  the  difference,  from  time  to  time,  of  more  lives 
sacrificed,  more  property  destroyed,  and  wider  extents  of  fertile  and 
productive  fields  and  more  and  more  of  valuable  property  constantly 
wantonly  sacrificed  to  the  incendiary's  torch. 

"  In  contests  of  this  nature,  where  a  considerable  body  of  people,  who 
have  attempted  to  free  themselves  of  the  control  of  the  superior  Gov- 
ernment, have  reached  such  point  in  occupation  of  territory,  in  power, 
and  in  general  organization  as  to  constitute  in  fact  a  body-politic,  hav- 
ing a  government  in  substance  as  well  as  in  name,  possessed  of  the 
elements  of  stability,  and  equipped  with  the  machinery  for  the  admin- 
istration of  internal  polic^^  and  the  execution  of  its  laws,  prepared  and 
able  to  administer  justice  at  home,  as  well  as  in  its  dealings  with  other 
powers,  it  is  within  the  province  of  those  other  powers  to  recognize  its 
existence  as  a  new  and  independent  nation.  In  such  cases  other  nations 
simply  deal  with  an  actually  existing  condition  of  things,  and  recog- 
nize as  one  of  the  powers  of  the  earth  that  body-i)olitic  which,  i)0ssess- 
iug  the  necessary  elements,  has,  in  fact,  become  a  new  power.  In  a 
word  the  creation  of  a  new  state  is  a  fact. 

"To  establish  the  condition  of  things  essential  to  the  rectognition  of 
this  fact,  there  must  be  a  people  occupying  a  known  territory,  united 
under  some  known  and  defined  ibrm  of  government,  acknowledged  by 
those  subject  thereto,  in  which  the  functions  of  government  are  admin- 
istered by  usual  methods,  competent  to  mete  out  justice  to  citizens  and 
strangers,  to  afford  remedies  for  public  and  for  private  wrongs,  and 
able  to  assume  the  correlative  international  obligations,  and  capable  of 
performing  the  corresponding  international  duties  resulting  from  its 
acquisition  of  the  rights  of  sovereignty.  A  i)ower  should  exist  complete 
in  its  organization,  ready  to  take  and  able  to  maintain  its  place  among 
the  nations  of  the  earth. 

"  While  conscious  that  the  insurrection  in  Cuba  has  shown  a  strength 
and  endurance  which  make  it  at  least  doubtfnl  whether  it  be  in  the 
power  of  Spain  to  subdue  it,  it  seems  unquestionable  that  no  such  civil 

405 


§  60.]  INTERVENTION.  [CHAP.  III. 

organization  exists  which  may  be  recognized  as  an  independent  govern- 
ment capable  of  performing  its  international  obligations  and  entitled  to 
be  treated  as  one  of  the  powers  of  the  earth.  A  recognition  un<ler  such 
circumstances  would  be  inconsistent  with  the  facts,  and  would  compel 
the  power  granting  it  soon  to  support  by  force  the  government  to  which 
it  had  really  given  its  only  claim  of  existence.  In  my  judgment,  the 
United  States  should  adhere  to  the  policy  and  the  principles  which  Lave 
heretofore  been  its  sure  and  safe  guides  in  like  contests  between  re- 
volted colonies  and  their  mother  country,  and,  acting  only  upon  the 
clearest  evidence,  should  avoid  any  possibility  of  suspicion  or  of  impu- 
tation. 

"  A.  recognition  of  the  independence  of  Cuba  being,  in  my  opinion, 
impracticable  and  indefensible,  the  question  which  next  presents  itself 
is  that  of  the  recognition  of  belligerent  rights  in  the  parties  to  the  con- 
test. 

"  In  a  former  message  to  Congress  I  had  occasion  to  consider  this 
question,  and  reached  the  conclusion  that  the  conflict  in  Cuba,  dreadful 
and  devastating  as  were  its  incidents,  did  not  rise  to  the  fearful  dignity 
of  war.  Regarding  it  now,  after  this  lapse  of  time,  I  am  unable  to  see 
that  any  notable  success,  or  any  marked  or  real  advance  on  the  part  of 
the  insurgents,  has  essentially  changed  the  character  of  the  contest.  It 
has  acquired  greater  age,  but  not  greater  or  more  formidable  propor- 
tions. It  is  possible  that  the  acts  of  foreign  powers,  and  even  acts  of 
Spain  herself,  of  this  very  nature,  might  be  pointed  to  in  defense  of  such 
recognition.  But  now,  as  in  its  past  history,  the  United  States  should 
carefully  avoid  the  false  lights  which  might  lead  it  into  the  mazes  of 
doubtful  law  and  of  questionable  propriety,  and  adhere  rigidly  and 
sternly  to  the  rule,  which  has  been  its  guide,  of  doing  only  that 
which  is  right  and  honest  and  of  good  report.  The  question  of  accord- 
ing or  of  withholding  rights  of  belligerency  must  be  judged,  in  every 
case,  in  view  of  the  particular  attending  facts.  Unless  justified  by 
necessiry,  it  is  always,  and  justly,  regarded  as  an  unfriendly  act,  and 
a  gratuitous  demonstration  of  moral  support  to  the  rebellion.  It  is 
necessary,  and  it  is  required,  when  the  interests  and  rights  of  another 
Government  or  of  its  peo])le  are  so  far  affected  by  a  pending  civil  con- 
flict as  to  require  a  definition  of  its  relations  to  the  parties  thereto. 
But  this  conflict  must  be  one  which  will  be  recognized  m  the  sense  of 
international  law  as  war.  Belligerence,  too,  is  a  fact.  The  mere  exist- 
ence of  contending  armed  bodies,  and  their  occasional  conflicts,  do  not 
constitute  war  in  the  sense  referred  to.  Ai)plying  to  the  existing  con- 
dition of  aflairs  in  Cuba  the  test  recognized  by  publicists  and  writers 
on  international  law,  and  which  have  been  observed  by  nations  of  dig- 
nity, honesty,  and  power,  when  free  from  sensitive  or  selfish  and  un- 
worthy motives,  I  fail  to  find  jn  the  insurrection  the  existence  of  such 
a  substantial  political  organization,  real,  palpable,  and  manifest  to  the 
world,  having  the  forms  and  capable  of  the  ordinary  functions  of  gov- 
406 


CHAP.  III.]  CUBA.  [§  60. 

eruinent  toward  its  owu  people  and  to  other  states,  witli  couits  for  the 
administration  of  justice,  with  a  local  habitation,  possessing;'  such  organ- 
ization of  force,  such  material,  such  occupation  of  tt^rritory,  as  to  take 
the  contest  out  of  the  category  of  a  mere  rebellious  insurrection,  or 
occasional  sliirmishes,  and  place  it  on  the  terrible  footing  of  war,  to 
which  a  recognition  of  belligerency  would  aim  to  elevate  it.  The  con- 
test, moreover,  is  solely  on  land;  the  insurrection  has  not  i)0sst'ssed 
itself  of  a  single  sea-port  whence  it  may  send  forth  its  Hag,  nor  has  it 
any  means  of  communication  with  foreign  jiowers  except  through  the 
military  lines  of  its  adversaries.  No  apprehension  of  any  of  those  sud- 
den 11  ud  difUcult  comi)lications  which  a  war  upon  the  ocean  is  apt  to 
precipitate  upon  the  vessels,  both  commercial  and  national,  and  upon 
the  consular  officers  of  other  powers,  calls  for  the  definition  of  their  re- 
lations to  the  parties  to  the  contest.  Considered  as  a  question  of  expe- 
diency, I  regard  the  accordance  of  belligerent  rights  still  to  be  as  unwise 
and  premature,  as  I  regard  it  to  be,  at  present,  indefensible  as  a  meas- 
ure of  right.  Such  recognition  entails  upon  the  country  according  the 
rights  which  flow  from  it  difficult  and  complicated  duties,  and  requires 
the  exaction  from  the  contending  parties  of  the  strict  observance  of  their 
rights  and  obligations.  It  confers  the  right  of  search  upon  the  high 
seas  by  vessels  of  both  parties ;  it  would  subject  the  carrying  of  arms 
and  munitions  of  war,  which  now  may  be  transported  freely  and  without 
interruption  in  the  vessels  of  the  United  States,  to  detention  and  to  pos- 
sible seizure;  it  would  give  rise  to  countless  vexatious  questions,  would 
release  the  parent  Government  from  responsibility  for  acts  done  by  the 
insurgents,  and  would  invest  Spain  with  the  right  to  exercise  the  supervis- 
ion recognized  by  our  treaty  of  1795  over  our  commerce  on  the  high  seas, 
a  very  large  part  of  which,  in  its  traffic,  between  the  Atlantic  and  the  Gulf 
States,  and  between  all  of  them  and  the  States  on  the  Pacific,  passes 
through  the  waters  which  wash  the  shores  of  Cuba.  The  exercise  of  this 
supervision  could  scarce  fail  to  lead,  if  not  to  abuses,  certainly  to  collis- 
ions perilous  to  the  i)eaceful  relations  of  the  two  states.  There  can  be 
little  doubt  to  what  result  such  supervision  would  before  long  draw  this 
nation.  It  would  be  unworthy  of  the  United  States  to  inaugurate  the 
possibility  of  such  result,  by  nieasures  of  questionable  right  or  expe- 
diency, or  by  any  indirection.  Apart  from  any  question  of  theoretical 
right,  I  am  satisfied  that,  while  the  accordance  of  belligerent  rights  to 
the  insurgents  in  Cuba  might  give  them  a  hope,  and  an  inducement  to 
protract  the  struggle,  it  would  be  but  a  delusive  hope,  and  would  not 
remove  the  evils  which  this  Government  and  its  people  are  experien- 
cing, but  would  draw  the  United  States  into  complications  which  it  has 
waited  long  and  already  suffered  much  to  avoid.  The  recognition  of 
independence  or  of  belligerency  being  thus,  in  my  judgment,  equally 
inadmissible,  it  remains  to  consider  what  course  shall  be  adopted  should 
the  conflict  not  soon  be  brpught  to  an  end  by  acts  of  the  parties  them- 

407 


§  60.]  INTERVENTION.  [CHAP.  III. 

selves,  and  should  the  evils  which  result  therefrom,  affecting  all  nations, 
and  particularly  the  United  States,  continue. 

"In  such  event,  I  am  of  opinion  that  other  nations  will  bo  compelled 
to  assume  the  responsibility  which  devolves  upon  them,  and  to  seriously 
consider  the  only  remaining  measures  possible,  mediation  and  interven- 
tion. Owing,  perhaps,  to  the  large  expanse  of  water  separating  the 
island  from  the  peninsula,  the  want  of  harmony  and  of  personal  sym- 
pathy between  the  inhabitants  of  the  colony  and  those  sent  thither  to 
rule  them,  and  want  of  adaptation  of  the  ancient  colonial  system  of 
Europe  to  the  present  times  and  to  the  ideas  which  the  events  of  the 
past  century  have  developed,  the  contending  parties  appear  to  have 
within  themselves  no  depository  of  common  confidence  to  suggest  wis- 
dom when  passion  and  excitement  have  their  sway,  and  to  assume  the 
part  of  peace-maker.  In  this  view,  in  the  earlier  days  of  the  con- 
test the  good  offices  of  the  United  States  as  a  mediator  were  tendered 
in  good  faith,  without  any  selfish  purpose,  in  the  interest  of  humanity 
and  in  sincere  friendship  for  both  parties,  but  were  at  the  time  declined 
by  Spain,  with  the  declaration,  nevertheless,  that  at  a  future  time  they 
would  be  indispensable.  'No  intimation  has  has  been  received  that  in  the 
opinion  of  Spain  that  time  has  been  reached.  And  yet  the  strife  contin- 
ues, with  all  its  dread  horrors,  and  all  its  injuries  to  the  interests  of  the 
United  States  and  of  other  nations.  Each  party  seems  quite  capable 
of  working  great  injury  and  damage  to  the  other,  as  well  as  to  all  the 
relations  and  interests  dependent  on  the  existence  of  peace  in  the  island; 
but  they  seem  incapable  of  reaching  any  adjustment,  and  both  have 
thus  far  failed  of  achieving  any  success  whereby  one  party  shall  pos- 
sess and  control  the  island  to  the  exclusion  of  the  other.  Under  these 
circumstances,  the  agency  of  others,  either  by  mediation  or  by  interven- 
tion, seems  to  be  the  only  alternative  which  must,  sooner  or  later,  be 
invoked  for  the  termination  of  the  strife.  At  the  same  time,  while  thus 
impressed,  I  do  not  at  this  time  recommend  the  adoption  of  any  meas- 
ure of  intervention.  I  shall  be  ready  at  all  times,  and  as  the  equal 
friend  of  both  parties,  to  respond  to  a  suggestion  that  the  good  offices 
of  the  United  States  will  be  acceptable  to  aid  in  bringing  about  a  peace 
honorable  to  both.  It  is  due  to  Spain,  so  far  as  this  Government  is 
concerned,  that  the  agency  of  a  third  power,  to  which  I  have  adverted, 
shall  be  adopted  only  as  a  last  expedient.  Had  it  been  the  desire  of  the 
United  States  to  interfere  in  the  affairs  of  Cuba,  repeated  opportunities 
for  so  doing  have  been  presented  within  the  last  few  years;  but  we  have 
remained  passive,  and  have  performed  our  whole  duty  and  all  interna- 
tional obligations  to  Spain  with  friendship,  fairness,  and  fidelity,  and 
with  a  spirit  of  patience  and  forbearance  which  negatives  every  possi- 
ble suggestion  of  desire  to  interfere  or  to  add  to  the  difficulties  with 
which  she  has  been  surrounded. 

"The  Government  of  Spain  has  recently  submitted  to  our  minister  at 
Madrid  certain  proposals  which,  it  is  hopetl,  may  be  found  to  be  the 
408 


CHAP,  in.]  CUBA.  [§  60. 

basis,  if  not  the  iictual  submission,  of  terms  to  meet  the  requirements 
of  the  particular  griefs  of  which  this  Government  has  felt  itself  enti- 
tled to  c()mi)lain.  These  proposals  have  not  yet  reached  me  in  their 
full  text.  On  their  arrival  they  will  be  taken  into  careful  examination, 
and  may,  I  hope,  lead  to  a  satisfactory  adjustment  of  the  questions  to 
which  they  refer,  au<l  remove  the  possibility  of  future  occurrences, 
such  as  have  given  rise  to  our  just  complaints. 

"  It  is  understood  also  that  renewed  efforts  are  being  made  to  intro- 
duce reforms  in  the  internal  administration  of  the  island.  Persuaded, 
however,  that  a  proper  regard  for  the  interests  of  the  United  States 
and  of  its  citizens  entitle  it  to  relief  from  the  strain  to  which  it  has 
been  subjected  by  the  difficulties  of  the  questions  and  the  wrongs  and 
losses  which  arise  from  the  contest  in  Cuba,  and  that  the  interests  of 
humanity  itself  demand  the  cessation  of  the  strife  before  the  whole 
island  shall  be  laid  waste  and  larger  sacrifices  of  life  be  made,  I  shall 
feel  it  my  duty,  should  my  hopes  of  a  satisfactorj"  adjustment  and  of 
the  early  restoration  of  peace  and  the  removal  of  future  causes  of  com- 
plaint be  unhappily  disappointed,  to  make  a  further  communication  to 
Congress  at  some  period  not  far  remote,  and  during  the  present  ses- 
sion, recommending  what  may  then  seem  to  me  to  be  necessary." 
President  Grant,  Seventh  Annual  Message,  1875. 

"  It  is  proper  to  state,  in  this  connection,  that  Instruction  26G  was 
brought  to  the  attention  of  the  Governments  of  France,  Germany, 
Russia,  Italy,  and  Austria,  although  not  precisely  in  the  same  terms  in 
which  it  was  communicated  to  the  Government  of  Great  Britain,  and 
the  suggestion  was  made  that  should  these  Governments,  in  view  of 
the  statements  in  Instruction  266,  which  had  been  communicated  to 
the  Spanish  Government,  see  fit  to  urge  upon  Spain  the  necessity  of 
abandoning  or  terminating  the  contest  in  Cuba,  such  course  would  be 
satisfactory  to  this  Government,  and  conducive  to  the  interests  of  all 
commercial  nations. 

"Information  has  been  received  by  telegraph  that  Germany,  Eussia, 
and  Italy  have  instructed  their  representatives  at  Madrid  to  urge  upon 
the  Spanish  Government  the  wisdom  of  restoring  peace  to  Cuba. 

"You  will  also  perceive,  from  Mr.  Hitt's  dispatch,  that  the  Duke 
Decazes  contemplated  consulting  the  Government  of  Great  Britain 
before  deciding  on  the  course  which  France  should  adopt.  The  De- 
partment is  not  advised  whether  any  such  conference  has  been  had,  nor 
as  to  the  conclusion  which  the  Duke  Decazes  may  have  reached.  An 
instruction  has,  however,  been  addressed  to  ^Ir.  Ilitt,  on  that  subject. 

"  It  is  proper  also  to  say  that  the  note  of  the  loth  of  November, 
from  the  minister  of  foreign  affairs  of  Spain,  in  reference  to  the  partic- 
ular reclamations  of  the  United  States,  while  it  holds  out  hopes  of  an 
adjustment  of  our  particular  griefs,  at  the  same  time  makes  it  neces- 

409 


§  60.]  INTERVENTION.  [CHAP.  III. 

sary  to  obtain  information  on  several  points,  and  renders  considerable 
delay  in  reaching  any  conclusion  necessary. 

"Under  these  circumstances,  and  as  certain  of  the  European  Gov- 
ernments have  issued  instructions  to  their  representatives  on  the  ques- 
tion, it  is  hoped  that  no  misapprehension  exists  on  the  part  of  the  Brit- 
ish Government  to  delay  instructions  which  it  may  be  willing  to  give, 
as  suggested  in  my  No.  805  to  you,  supporting  the  views  of  this  Gov- 
ernment as  to  the  necessity  of  ending  the  contest  in  Cuba." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Schenck,  Jan.  11,  1876.     MSS.  Inst.,  Gr.  Brit.     ■ 

The  expression  to  Spain  by  the  United  States,  in  connection  with 
other  powers,  of  a  desire  that  the  civil  war  in  Cuba  should  be  brought 
to  a  close,  without,  however,  taking  any  decided  steps  of  interference, 
it  being  understood  that  the  United  States  "neither  sought  nor  desired 
any  physical  force  or  x^ressure,  but  simply  the  moral  influence  of  con- 
currence of  opinion  as  to  the  protraction  of  the  contest,"  is  not  incon- 
sistent with  the  traditions  of  the  United  States. 

Mr.  Fish,  See.  of  State,  to  Mr.  Davis,  Jan.  20,  1876.     MSS.  Inst.,  Germ.     See  as  to 

joint  interposition  in  South  American  wars,  Mr.  Evarts,  Sec.  of  State,  to  Mr. 

White,  July,  1879,  ibid.    And  see  infra,  §§  72,  102. 
As  to  suggestions  to  Spain  in  reference  to  restoration  of  order  and  prosperity 

in  Cuba,  see  Mr.  Fish,  Sec.  of  State,  to  Mr.  Gushing,  Mar.  1,  18/6.     MSS. 

Inst.,  Spain. 
As  to  United  States  intervention  in  Cuba,  see  same  to  same.  Mar. 22,  1876,  Hid. 

"Another  year  has  passed  without  bringing  to  a  close  the  protracted 
contest  between  the  Spanish  Government  and  the  insurrection  in  the 
Island  of  Cuba.  While  the  United  States  have  sedulously  abstained 
from  any  intervention  in  this  contest,  it  is  impossible  not  to  feel  that  it 
is  attended  with  incidents  affecting  the  rights  and  interests  of  American 
citizens.  Apart  from  the  effect  of  the  hostilities  upon  trade  between 
the  United  States  and  Cuba,  their  progress  is  inevitably  accompanied 
by  complaints,  having  more  or  less  foundation,  of  searches,  arrests,  em- 
bargoes, and  oppressive  taxes  upon  the  property  of  American  residents, 
and  of  unprovoked  interference  with  American  vessels  and  commerce. 
It  is  due  to  the  Government  of  Spain  to  say  that  during  the  past  year 
it  has  promptly  disavowed  and  offered  reparation  for  any  unauthorized 
acts  of  unduly  zealous  subordinates  whenever  such  acts  have  been 
brought  to  its  attention.  Xevertheless,  such  occurrences  cannot  but 
tend  to  excite  feelings  of  annoyance,  suspicion,  and  resentment,  which 
are  greatly  to  be  deprecated,  between  the  respective  subjects  and  citi 
zens  of  two  friendly  powers.'' 

President  Hayes,  First  Annual  Message,  1877. 

"This  Government  has  more  than  once  been  called  upon  of  late  to 

take  action  in  fulfillment  of  its  international  obligations  toward  Spain. 

Agitation  in  the  Island  of  Cuba  hostile  to  the  Spanish  Crown  having 

been  fomented  by  persons  abusing  the  sacred  rights  of  hospitality  which 

410 


CHAP.  III.]  SAN    DOMINGO    AND    HAYTI.  [§  ^^• 

our  territory  afifords,  tbe  ofificers  of  this  Government  have  been  instrncted 
to  exercise  vigilance  to  pre\ent  infractions  of  our  neutrality  laws  at 
Key  West  and  at  other  points  near  the  Cuban  coast.  I  am  happy  to  say 
that  in  the  only  instance  where  these  precautionary  measures  were  suc- 
cessfully eluded,  the  oft'enders,  when  found  in  our  territory,  were  subse- 
quently tried  and  convicted." 

Pr(;si(l(uit  Arthur,  Fourth  Aimual  Message,  1884. 

The  following  citations  arc  taken  from  the  list  of  papers  concerning  foreign  relations 
attached  to  the  register  of  the  Department  of  State  : 

Neutrality  between  Spain  and  Cuba.  Resolution  requesting  the  President  to 
issue  a  neutrality  proclamatiou  containing  the  same  provisions  as  that  issued 
by  Spain  in  1861  on  the  occasion  of  the  outbreak  of  the  civil  war  in  United 
States.  January  10,  187().  (S.  Mis.  Doc.  29,  Forty-fourth  Congress,  first  ses- 
sion.) 

Intervention  of  foreign  powers  j)ropo8ed  by  the  United  States  to  restore  order  in 
Cuba  ;  condition  of  affairs  in  ;  correspondence  respecting  the  trial  of  General 
Juan  Bnrriel  for  the  massacre  of  the  passengers  and  crew  of  the  Virginius. 
President's  message.  January  21,  1876.  (H.  Ex.  Doc.  90,  Forty-fourth  Con- 
gress, lirst  session.)    As  to  the  Virginius,  see  infra,  §  327. 

Cuban  insurrection.  Terms  and  conditions  upon  which  the  surrfender  of  the  in- 
surgents has  been  made.  President's  message.  May  14,  1878.  (S.  Ex.  Doc. 
79.     Fortjf-tifth  Congress,  second  session.) 

Certain  diplomatic  correspondence  with  Spain  in  1876,  in  cases  of  citizens  of  the 
United  States  condemned  to  death  in  Cuba.  President's  message.  May  3, 
1882.     (S.  Ex.  Doc.  165,  Forty-seventh  Congress,  first  session.) 

Cuba  and  Porto  Rico.  Discriminating  duties  on  commerce  between  the  United 
States  and.  President's  message,  transmitting  report  from  the  Secretary  of 
State.  January  15,  1884.  (S.  Ex.  Doc.  58,  Forty-eighth  Congress,  first  ses- 
sion.)— January  30,  1884.     Part  2,  additional  papers. 

An  elaborate  exposition  of  the  relations  of  the  United  States  to  Cuba  down  to 
1868,  is  given  in  Mr.  W.  B.  Lawrence's  Com.  sur  droit  int.,  ii,  316^. 

(4)  San  Domingo  and  Hayti. 

§61. 

"  It  is  not  deemed  unreasonable  on  the  part  of  the  Government  of 
Hayti  that  it  should  ask  leading-  maritime  states  to  guarantee  their  sov- 
ereignty over  Samana.  The  Government  of  Hayti  very  properly  con- 
sults the  United  States  Government  with  reference  to  such  a  guarantee. 
The  President  is  gratified  also  that  the  Haytian  Government  has  sub- 
mitted its  views  in  a  proper  spirit  to  Great  Britain.  Nevertheless,  the 
question  unavoidably  calls  up  that  ancient  and  settled  policy  of  the 
United  States  which  disinclines  them  to  the  constituting  of  political- 
alliances  with  foreign  states,  and  especially  disinclines  them  to  engage- 
ments with  foreign  states  in  regard  to  subjects  which  do  not  fall  within 
the  range  of  necessary  and  immediate  domestic  legislation.  This  policy 
would  oblige  the  United  States  to  refrain  from  making  such  a  guarantee 
as  Hayti  desires,  but  disclaiming  for  themselves  all  purpose  or  desire 

411 


^61.]  INTERVENTION.  [CHAP.  III. 

to  disturb  the  peace  and  jseciirity  of  Hayti,  the  United  States  would  be 
gratified  if  Great  Britain  and  other  maritime  states  should  see  tit  to 
regard  the  wish  of  the  Government  of  Hayti  in  the  same  S])iiit  of  justice 
and  magnanimity." 

Mr.  Seward,  Sec    of  State,  to  Mr.  Bruce,  Aug.  lb,  1865.     MSS.  Notes,  Gr.  Brit. 

It  is  against  the  policy  of  the  United  States  to  interfere  in  contests 
between  the  tituhir  Government  of  Hayti  and  insurgents. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  Oct.  13,  1869.    MSS.  Inst.,  Hayti.    Same 
to  same.  Mar.  26,  1873.     See  Mr.  Bayard,  Sec.  of  State,   to  Mr.  Roberts, 

Aug.  21,  1885.     MSS.  lust.,  Chili. 

"  During  the  last  session  of  Congress  a  treaty  for  the  annexation  of 
the  Eepublic  of  San  Domingo  to  the  United  States  failed  to  receive  the 
requisite  two-thirds  vote  of  the  Senate.  I  was  thoroughly  convinced 
then  that  the  best  interests  of  this  country,  commercially  and  materially, 
demanded  its  ratification.  Time  has  only  confirmed  me  in  this  view.  I 
now  firmly  believe  that  the  moment  it  is  known  that  the  United  States 
have  entirely  abandoned  the  project  of  accepting,  as  a  part  of  its  terri- 
tory, the  island  of  San  Domingo,  a  free  port  will  be  negotiated  for  by 
European  nations  in  the  Bay  of  Samana.  A  large  commercial  city 
will  spring  up,  to  which  we  will  be  tributary  without  receiving  corre- 
sponding benefits,  and  then  will  be  seen  the  folly  of  our  rejecting  so  great 
a  prize.  The  Government  of  San  Domingo  has  voluntarily  sought  this 
annexation.  It  is  a  weak  power,  numbering  probably  less  than  120,000 
souls,  and  yet  possessing  one  of  the  richest  territories  under  the  sun, 
capable  of  supporting  a  population  of  10,000,000  of  people  in  luxury. 
The  people  of  San  Domingo  are  not  capable  of  maintaining  themselves 
in  their  present  condition,  and  must  look  for  outside  support.  They 
yearn  for  the  protection  of  our  free  institutions  and  laws — our  progress 
and  civilization.     Shall  we  refuse  them? 

''  The  acquisition  of  San  Domingo  is  desirable  because  of  its  geo- 
graphical position.  It  commands  the  entrance  to  the  Caribbean  Sea  and 
the  Isthmus  transit  of  commerce.  It  possesses  the  richest  soil,  best 
and  most  capacious  harbors,  most  salubrious  climate,  and  the  most  val- 
uable products  of  the  forest,  mine,  and  soil  of  any  of  the  West  India 
Islands.  Its  possession  by  us  will  in  a  few  years  build  up  a  coastwise 
commerce  of  immense  magnitude,  which  will  go  far  toward  restoring  to 
us  our  lost  merchant  marine.  It  will  give  to  us  those  articles  which  we 
consume  so  largely  and  do  not  produce,  thus  equalizing  our  exports  and 
imi)orts.  In  case  of  foreign  war  it  will  give  us  command  of  all  the 
'islands  referred  to,  and  thus  prevent  an  enemy  from  ever  again  jiossess- 
ing  himself  of  rendezvous  upon  our  very  coast.  At  present  our  coast 
trade  between  the  States  bordering  on  the  Atlantic  and  those  border- 
ing on  the  Gulf  of  Mexico  is  cut  into  by  the  Bahamas  and  the  Antilles. 
Twice  we  must,  as  it  were,  pass  through  foreign  countries  to  get  by  sea 
from  Georgia  to  the  west  coast  of  Florida. 
412 


CHAP.  III.]  SAN    DOMINGO    AND    HAYTI.  [§61. 

"  Sau  Domiiigo,  with  a  stable  Government  uiuior  which  her  immense 
resources  can  be  developed,  will  give  remunerative  wages  to  tens  of 
thousands  of  laborers  not  now  upon  the  island.  This  labor  will  take 
advantage  of  every  available  means  of  transportation  to  abandon  the 
adjacent  islands  and  seek  the  blessings  of  freedom  and  its  sequence- 
each  inhabitant  receiving  the  reward  of  his  own  labor.  Porto  Kico  and 
Cuba  will  have  to  abolish  slavery,  as  a  measure  of  self-preservation,  to 
retain  their  laborers. 

''  San  Domingo  will  become  a  large  consumer  of  the  products  of 
Northern  farms  and  manufactories.  The  cheap  rate  at  which  her  citi- 
zens can  be  furnished  with  food,  tools,  and  machinery  will  make  it 
necessary  that  contiguous  islands  should  have  the  same  advantages  in 
order  to  compete  in  the  production  of  sugar,  coffee,  tobacco,  tropical 
fruits,  &c.  This  will  open  to  us  a  still  wider  market  for  our  products. 
The  production  of  our  own  supply  of  these  articles  will  cut  off  more 
than  one  hundred  millions  of  our  annual  imports,  besides  largely  in- 
creasing our  exports.  With  such  a  picture  it  is  easy  to  see  how  our 
large  debt  abroad  is  ultimately  to  be  extinguished.  With  a  balance  of 
trade  against  us  (including  interest  on  bonds  held  by  foreigners  and 
money  spent  by  our  citizens  traveling  in  foreign  lands)  equal  to  the  en- 
tire yield  of  the  jirecious  metals  in  this  country,  it  is  not  so  easy  to  see 
how  this  result  is  to  be  otherwise  accomplished. 

"The  acquisition  of  San  Domingo  is  an  adherence  to  the  'Monroe 
doctrine' ;  it  is  a  measure  of  national  protection  ;  it  is  asserting  our 
just  claim  to  a  controlling  influence  over  the  great  commercial  traffic 
soon  to  flow  from  west  to  east  by  way  of  the  Isthmus  of  Darien;  it  is 
to  build  up  our  merchant  marine;  it  is  to  furnish  new  markets  for  the 
l)roducts  of  our  farms,  shops,  and  manufactories ;  it  is  to  make  slavery 
insupportable  in  Cuba  and  Porto  Eico  at  once,  and  ultimately  so  in 
Brazil ;  it  is  to  settle  the  unhappy  condition  of  Cuba  and  end  an  exter- 
minating conflict ;  it  is  to  provide  honest  means  of  paying  our  honest 
debts  without  overtaxing  the  people;  it  is  to  furnish  our  citizens  with 
the  necessaries  of  everyday  life  at  cheaper  rates  than  ever  before  ;  and 
it  is,  in  fine,  a  rapid  stride  toward  that  greatness  which  the  intelligence, 
industry,  and  enterprise  of  the  citizens  of  the  United  States  entitle  this 
country  to  assume  among  nations. 

"In  view  of  the  importance  of  this  question,  I  earnestly  urge  upon  Con- 
gress early  action  expressive  of  its  views  as  to  the  best  means  of  acquir- 
ing San  Domingo.  My  suggestion  is  that,  by  joint  resolution  of  the  two 
houses  of  Congress,  the  Executive  be  authorized  to  ap])oint  a  commis- 
sion to  negotiate  a  treaty  with  the  authorities  of  San  Domingo  for  the 
acquisition  of  that  island,  and  that  an  appropriation  be  made  to  defray 
the  expenses  of  such  commission.  The  (piestion  may  then  be  deter- 
mined, either  by  the  action  of  the  Senate  upon  the  treaty,  or  the  joint 
action  of  the  two  houses  of  Congress  upon  a  resolution  of  annexation, 
as  in  the  case  of  the  acquisition  of  Texas.     So  convinced  am  I  of  the 

413 


§  61.]  INTERVENTION.  [CHAP.  III. 

advantages  to  flow  from  the  acquisition  of  San  Domingo,  and  of  the 
great  disadvantages — 1  might  almost  say  calamities — to  flow  from  non- 
acquisition,  that  I  believe  the  subject  has  only  to  be  investigated  to  be 
approved." 

President  Grant,  Second  Annual  Message,  1870. 

According  to  Mr.  Blaine  (2  Twenty  Years  in  Congress,  458,  461),  the 
negotiation  for  the  annexation  of  the  Dominican  Republic  was  opened 
at  the  request  of  the  authorities  of  San  Domingo,  and  it  began  about 
three  months  after  the  President's  inauguration.  "  In  July  General  O. 
E.  Babcock,  one  of  the  President's  private  secretaries,  was  dispatched 
to  San  Domingo  upon  an  eriand  of  which  the  public  knew  nothing.  He 
bore  a  letter  of  instructions  from  Secretary  Fish,  apparently  limiting 
the  mission  to  an  inquiry  into  the  condition,  prospects,  and  resources  of 
the  island.  From  its  tenor  the  negotiation  of  a  treaty  was  not  at  that 
time  anticipated  by  the  State  Department.  General  Babcock's  mis- 
sion finally  resulted,  however, in  a  treaty  for  the  annexation  of  the  Re- 
public of  Dominica,  and  a  convention  for  the  lease  of  the  bay  and  pen- 
insula of  Samana — separately  negotiated,  and  both  concluded  on  the 
20th  of  November,  18G9.  The  territory  included  in  the  Dominican 
Republic  is  the  eastern  portion  of  the  island  of  San  Domingo,  originally 
known  as  Hispaniola.  It  embraces,  perhaps,  two-thirds  of  the  whole. 
The  western  part  forms  the  Republic  of  Hayti.  With  the  exception  of 
Cuba,  the  island  is  the  largest  of  the  West  India  group.  The  total  area  is 
about  28,000  square  miles — equivalent  to  Massachusetts,  ]S^ew  Hampshire, 
Vermont,  and  Rhode  Island  combined.  President  Grant  placed  extrav- 
agant estimates  upon  the  value  of  the  territory  which  he  supposed  was 
now  acquired  under  the  Babcock  treaties.  In  his  message  to  Congress 
he  expressed  the  belief  that  the  island  would  yield  to  the  United  States 
all  the  sugar,  coflee,  tobacco,  and  other  tropical  products  which  the 
country  would  consume.  '  The  production  of  our  supply  of  these  ar- 
ticles'  said  the  President,  '  will  cut  ofl"  more  than  8100,000,000  of  our 
annual  imports,  besides  largelj' increasing  our  exports.'  *  *  *  'It  is 
easy'  he  went  on  to  say,  'to  see  how  our  large  debt  abroad  (after  such 
an  annexation)  is  ultimately  to  be  extinguished.'  He  maintained  that 
'the  acquisition  of  San  Domingo  will  furnish  our  citizens  with  the  neces- 
saries of  every-day  life  at  cheaper  rates  than  ever  before,  and  it  is  in 
tine  a  rapid  stride  towards  that  greatness  which  the  intelligence,  indus- 
try, and  enterprise  of  our  citizens  entitle  this  country  to  assume  among 
nations.' " 

The  treaty  was  rejected  by  the  Senate  by  a  vote  of  28  to  28,  This, 
however,  did  not  cause  the  withdrawal  of  the  projects  by  the  President. 
In  his  annual  message  of  the  succeeding  December  he  reiterated  his 
belief  in  terms  quoted  above. 

"  The  subject,"  so  Mr.  Blaine  states,  "at  once  led  to  discussion  in  both 
bran(;hes  of  Congress,  in  v/hich  tlie  hostility  to  the  scheme  on  the  part 
of  some  leading  men  assumed  the  tone  of  personal  exasperation  towards 
General  (xrant.  So  intense  was  the  opposition  that  the  President's  friends 
in  the  Senate  did  not  deem  it  prudent  even  to  discuss  the  measure  which 
he  recommended.  As  the  best  that  could  be  done,  Mr.  Morton,  of  Indiana, 
introduced  a  resolution  empowering  the  President  to  appoint  three  com- 
mission<'rs  to  proceed  to  San  Domingo  and  make  certain  inquiries  into  the 
political  condition  of  the  island,  and  also  into  its  agricultural  and  commer- 
cial value.  The  commissioners  were  to  have  no  compensation.  Tlieir  ex- 
i:>enses  were  to  be  paid,  and  a  secretary  was  to  be  provided.     Even  in 

414: 


CHAP.  III.]  SAN    DOMINGO    AND    HAYTI.  [S^  61. 

this  mild  shape,  the  resolution  was  hotly  opposed.  It  was  finally  ad(>i)ted 
by  the  Senate,  but  wheu  it  reached  tlie  House,  that  Ixxly  refused  to  eon- 
cur,  except  with  a  proviso  that  nothing  in  this  resolution  shall  be  lield, 
understood,  or  construed  as  committing  Congress  to  the  policy  of  an- 
nexing San  Domingo.  The  Senate  concurred  in  the  condition  thus 
attached,  and  the  President  approved  it.  It  was  i)lain  that  the  Presi- 
dent could  not  carry  the  annexation  scheme,  but  he  courted  a  searching 
investigation  in  order  that  the  course  he  had  i)ursued  might  l)e  vindicated 
by  the  well  considered  judgment  of  impartial  men.  The  President's 
selections  for  the  commission  were  wisely  made.  Benjamin  F.  Wade, 
of  Ohio,  Andrew  J).  White,  of  New  York,  and  Samuel  G.  Howe,  of 
Massachusetts,  were  men  entitled  to  the  highest  resi)ect,  and  their  con- 
clusions, based  on  intelligent  investigation,  would  exert  large  influ- 
ence u])on  ])ublic  opinion.  The  commission  at  once  visited  the  island 
(carried  thither  on  a  United  States  vessel  of  Avar),  made  a  thorough  ex- 
amination of  all  its  resources,  held  conferences  with  its  leadiug  citizens, 
and  concluded  that  the  policy  recommended  by  General  Grant  shouhi 
be  sustained.  The  commissioners  corroborated  General  Grant's  asser- 
tion that  the  island  could  supply  the  United  States  with  sugar,  cotfee, 
and  other  tropical  products  needed  for  our  consumi)tion  ;  and  they  up- 
held the  President  in  his  belief  that  the  possession  of  the  island  by  the 
United  States  would  by  the  laws  of  trade  make  slave  labor  in  the  neigh- 
boring islands  unjjrofitable,  and  render  the  whole  slave  and  caste  sys- 
tems odious.  In  communicating  the  report,  the  President  made  some  re- 
marks which  had  a  personal  bearing.  'The  mere  rejection  by  the  Senate 
of  a  treaty  negotiated  by  the  President,'  said  he, '  only  indicates  a  differ- 
ence of  opinion  among  different  dei)artments  of  the  Government,  with- 
out touching  the  character  or  wounding  the  pride  of  either.  But  when 
such  rejection  takes  place  simultaneously  with  the  charges  openly  nuide 
of  corruption  on  the  part  of  the  President,  or  of  those  employed  by  him, 
the  case  is  different.  Indeed,  in  such  case,  the  honor  of  the  nation  de- 
mands investigation.  This  has  been  accomplished  by  the  report  of  the 
commissioners,  herewith  transmitted,  and  which  fully  vindicates  the 
purity  of  motives  and  action  of  those  who  represented  the  United  States 
in  the  negotiation.  And  now  my  task  is  finished,  and  with  it  ends  all  per- 
sonal solicitude  on  the  subject.  My  duty  being  done,  yours  begins,  and 
I  gladly  hand  over  the  wliole  matter  to  the  judgment  of  the  American 
people,  and  of  their  representatives  in  Congress  assembled.'  The 
poiuted  remarks  of  the  President  were  understood  as  referring  to  the 
speech  made  by  Mr.  Sumner  when  the  resolution  for  the  apiwintment 
of  the  commission  was  pending  before  the  Senate.  *  *  *  No  further 
attempt  was  made  by  the  President  to  urge  the  acquisition  of  San 
Domingo  upon  Congress.  It  was  evident  that  neither  the  Senate  nor 
House  could  be  induced  to  approve  the  scheme,  and  the  Administration 
was  necessarily  compelled  to  abandon  it.  Bat  defeat  did  not  change 
General  Grant's  view  of  the  question.  He  held  to  his  belief  in  its  expe- 
diency and  value  with  characteristic  tenacity. 

"In  his  last  annual  message  to  Congress  (December,  1870),  nearly  six 
years  after  the  controversy  had  closed,  he  recurred  to  the  subject,  to 
record  once  more  his  approval  of  it.  'If  my  view,'  said  he,  'hacl  been 
concurred  in,  the  country  would  be  in  a  more  prosperous  condition  to- 
day, both  politically  and  financially.'  He  then  proceeded  to  restate  the 
question,  and  to  sustain  it  with  the  arguments  which  he  had  i)resented 
to  Congress  in  1870  and  1871.     His  last  words  were,  'I  do  not  present 

415 


§  61a.]  INTERVENTION.  [CHAP.  III. 

these  views  uow  as  a  recommendation  for  a  renewal  of  the  subject  of 
annexation,  but  I  do  refer  to  it  to  vindicate  my  previous  action  in 
respect  to  it.' " 

As  to  convention  with  Dominican  Republic  for  lease  of  peninsula  and  bay 
of  Samana,  see  Mr.  Seward,  Sec.  of  State,  to  Mr.  Pujol,  Jan.  10, 1868.  MSS. 
Notes,  Dom.  Rep,  Same  to  same,  Jan.  20,  18(58,  Jan.  28,  18()8.  Mr.  Evarts, 
Sec.  of  State,  to  Mr,  Delmoute,  Feb.  19,  1880,  ibid. 

Senate  Ex.  Doc.  No.  34,  41st  Cong.,  3d  sess.,  gives  President  Grant's  message  of 
Feb.  7,  1871,  forwarding  correspondence  in  respect  to  the  prior  negotiations 
as  to  San  Domingo. 

The  message  of  President  Grant  of  Apr.  5,  1871,  communicating  the  report  of 
the  commission  of  inquiry  to  the  island  of  San  Domingo,  is  given  in  Senate 
Ex.  Doc.  No.  9,  42d  Cong.,  2d  sess.  See  also  Senate  Ex.  Doc.  No.  35,  42d 
Cong.,  Ist  sess.  Other  papers  relative  to  such  annexation  are  in  Senate  Ex. 
Doc.  No.  17,  4l8t  Cong.,  3d  sess. ;  House  Ex.  Doc.  No.  42,  41st  Cong.,  3d  sess. 

(5)  Danish  West  Indies. 
§  61a. 

There  is  no  printed  executive  summary  of  the  negotiations  for  the 
Danish  West  Indies. 

So  far  as  can  be  learned  from  the  archives  of  this  Department,  nego- 
tiations were  commenced  by  Mr.  Seward,  Secretary  of  State,  on  July  17, 
1866,by  a  note  to  the  Danish  minister,  General  Eaasloft",  offering  85,000,000 
gold  for  the  three  islancis  to  be  delivered,  with  all  fixed  public  property 
therein,  without  conditions  or  incumbrances.  General  Raasloff  having 
shortly  afterwards  returned  to  Denmark  to  accept  Waq  ministry  of  war, 
the  negotiations  were  transferred  to  Copenhagen,  where  thej^  were  con- 
ducted by  Mr.  Yeaman,  our  minister  there,  on  our  part,  and  for  the  Dan- 
ish Government,  by  Count  Frijs,  minister  of  foreign  affairs,  and  General 
Raasloff".  No  counter-proposal  was  made  until  May  17,  1SG7,  by  the 
Danish  Government.  Then  Count  Frijs  told  Mr.  Yeaman  that  Den- 
mark expected  $15,000,000  gold  for  the  three  islands,  and  that  it 
would  not  cede  them  without  the  consent  of  the  inhabitants ;  but  that 
as  his  Government  could  not  dispose  of  Santa  Cruz  without  the  con- 
sent of  France,  he  was  willing  to  cede  St.  Thomas  and  St.  John  for 
$.0,000,000  gold,  and  to  treat  separately  as  to  Santa  Cruz. 

Un  May  27,  1867,  Mr.  Seward  sent  Mr.  Yeaman  the  draft  of  a  con- 
vention such  as  he  desired.  In  it  he  offered  $7,500,000  for  the  three 
islands  on  the  conditions  above  stated.  And  in  addition  he  instructed 
Mr.  Yeaman  that  in  no  case  was  a  stipulation  for  the  consent  of  the  in- 
habitants to  be  inserted  in  the  convention;  that  permission  would  be 
granted  them  to  leave  the  island  at  any  time  within  two  years  after  the 
TJnited  States  took  possession  of  it,  if  they  preferred  their  original  alle- 
giance to  that  of  the  United  States;  and  that  the  convention  must  be 
ratified  on  or  before  August  4,  1867. 

These  terms  not  proving  acceptable  to  Denmark,  the  negotiations 
were  i)rolonged  until  finally  Mr.  Seward  gave  up  the  attempt  to  fix  the 
date  of  ratification,  concurred  in  a  stipulation  in  the  convention  for  the 
consent  of  the  inhabitants,  and  offered  $7,500,000  for  St.  Thomas  and 
St.  -John. 

On  this  basis  a  treaty  was  concluded  on  October  25,  1867.  This  was 
pr()m])tly  ratified  by  Denmark,  but  the  Unit-ed  States  Senate  delayed 

416 


CHAP.  III.]  HAWAII.  [§  62. 

action  on  it,  and  finally  rejected  it  in  the  session  of  1868,  as  appears  by 
the  records  of  the  Department  of  State, 

As  to  negotiations  for  cossion  to  tlic  United  States  of  the  Danish  West  India 

Islands,  seo  more  fully  Mr.  Seward,  Sec.  of  State,  to  Mr.  Yeaman,  May  27, 

1867;  Sept.  23,  1667/.     MSS.  Inst.,  Denmark. 

"Denmark  had  no  particular  desire  to  sell  to  the  United  States,  but 
was  persuaded  to  do  so.  Tlie  inhabitants  of  the  islands  had  already 
voted  to  acce))t  the  United  States  as  their  sovereign.  The  late  Mr. 
Charles  Sumner,  then  chairman  of  the  committee  on  foreign  relations 
of  the  Senate,  who  was  engaged  in  a  [)ersonal  quarrel  with  the  admin- 
istration, simply  refused  to  report  back  the  treaty  to  the  Senate,  and 
he  was  supported  by  a  sufficient  number  of  his  committee  and  of  Sen- 
ators to  enable  the  matter  to  be  left  in  this  position.  It  required  new 
negotiations  to  prolong  the  term  of  ratitication,  and  it  was  with  great 
difficulty  that  in  a  subsequent  session  the  treaty  was  tinally  brought 
before  the  Senate  and  rejected.  As  may  be  imagined,  our  iiiendly  re- 
lations with  Dennuirk  were  considerably  impaired  by  this  method  of 
doing  business." 

Schuyler's  Am.  Diplomacy,  23/. 

(6)  Hawaii  (Sandwich  Islands). 

§62.     • 

"The  United  States  have  regarded  the  existing  authorities  in  the 
Sandwich  Islands  as  a  Government  suited  to  the  condition  of  the  peo- 
ide,  and  resting  on  their  own  choice;  and  the  President  is  of  opinion 
that  the  interests  of  all  commercial  nations  require  that  that  Govern- 
ment should  not  be  interfered  with  by  foreign  powers.  Of  the  vessels 
which  visit  the  islands,  it  is  known  that  the  great  majority  belong  to 
the  United  States.  The  United  States,  therefore,  are  more  interested 
in  the  fate  of  the  islands  and  of  their  Government  than  any  other  na- 
tion can  be;  and  this  consideration  induces  the  President  to  be  quite 
willing  to  declare,  as  the  sense  of  the  Government  of  the  United  States, 
that  the  Government  of  the  Sandwich  Islands  ought  to  be  respected; 
that  no  power  ought  either  to  take  possession  of  the  islands  as  a  con- 
quest or  for  the  purpose  of  colonization,  and  that  no  power  ought  to 
seek  for  any  undue  control  over  the  existing  Government,  or  any  ex- 
clusive privileges  or  preferences  with  it  in  matters  of  commerce." 

Mr.  Webster,  Sec.  of  State,  to  Messrs.  Haalilio  and  Richards^  Dec.  19,  1«42.     (> 
Webster's  Works,  478. 

"Owing  to  their  locality  and  to  the  course  of  the  winds  which  prevail 
in  this  quarter  of  the  world,  the  Sandwich  Islands  are  the  stopping 
place  for  almost  all  vessels  passing  from  continent  to  continent  across 
the  Pacific  Ocean.  They  are  especially  resorted  to  by  the  great  num- 
bers of  vessels  of  the  United  States  which  are  engaged  in  the  whale- 
fishery  in  those  seas.  The  number  of  vessels  of  all  sorts  and  the 
amount  of  property  owned  by  citizens  of  the  United  States  which  are 
found  in  those  islands  in  the  course  of  a  year  are  stated,  probably  with 
sufficient  accuracy,  in  the  letter  of  the  agents. 

S.  Mis.  162— VOL.  T 27  •  ^^"^ 


§  62.]  INTERVENTION.  [ClIAP.  III. 

"Just  emergiug  from  a  state  of  barbarism,  the  Government  of  tbe 
islands  is  as  yet  feeble;  but  its  dispositions  appear  to  be  just  and 
pacific,  and  it  seems  anxious  to  improve  tbe  condition  of  its  people  by 
the  introduction  of  knowledge,  of  religious  and  moral  institutions, 
means  of  education,  and  tbe  arts  of  civilized  life. 

"It  cannot  but  be  in  conformity  with  the  interest  and  tbe  wishes  of 
the  Government  and  tbe  people  of  the  United  States  that  this  com- 
munity, thus  existing  in  the  midst  of  a  vast  expanse  of  ocean,  should  be 
respected,  and  all  its  rights  strictly  and  conscientiously  regarded.  And 
this  must  also  be  the  true  interest  of  all  other  commercial  states.  Far 
remote  from  the  dominions  of  European  powers,  its  growth  and  pros- 
perity as  an  independent  state  may  yet  be  in  a  high  degree  useful  to 
all  whose  trade  is  extended  to  those  regions,  while  its  nearer  approach 
to  this  continent  and  the  intercourse  which  American  vessels  have  with 
it,  such  vessels  constituting  five-sixths  of  all  which  annually  visit  it, 
could  not  but  create  dissatisfaction  on  the  part  of  the  United  States  at 
any  attempt  by  another  power,  should  such  an  attempt  be  threatened 
or  feared,  to  take  possession  of  the  islands,  colonize  them,  and  subvert 
the  native  Government.  Considering,  therefore,  that  the  United  States 
possess  so  very  large  a  share  in  the  intercourse  with  those  islands,  it  is 
deemed  not  unfit  to  make  the  declaration  that  their  Government  seeks, 
nevertheless,  no  peculiar  advantages,  no  exclusive  control  over  the 
Hawaiian  Government,  but  is  content  with  its  independent  existence, 
and  anxiously  wishes  for  its  security  and  prosperity.  Its  forbearance 
in  this  respect,  under  the  circumstances  of  the  very  large  intercourse 
which  American  vessels  have  with  the  islands,  would  justify  this  Gov- 
ernment, should  events  hereafter  arise  to  require  it,  in  making  a  decided 
remonstrance  against  the  adoption  of  an  opposite  policy  by  any  other 
power.  Under  the  circumstances,  I  recommend  to  Congress  to  provide 
for  a  moderate  allowance,  to  be  made  out  of  the  Treasury,  to  the  consul 
residing  there,  that,  in  a  Government  so  new  and  a  country  so  remote, 
American  citizens  may  have  respectable  authority  to  which  to  ajiply  for 
redress  in  case  of  injury  to  their  persons  and  property,  and  to  whom 
the  Government  of  the  country  may  also  make  known  any  acts  com- 
mitted by  American  citizens  of  which  it  may  think  it  has  a  right  to 
compLiin." 

Meesage  of  President  Tyler,  Dec.  30,  1842.     G  Webster's  Works,  463-'4.     See 
House  Ex.  Doc.  No.  35,  27th  Cong.,  3(1  sess. 

The  Hawaiian  Islands  bear  such  peculiar  relations  to  ourselves  that 
"we  might  even  feel  justified,  consistently  with  our  own  principles,  in 
interfering  by  force  to  prevent  their  falling  (by  conquest)  into  the  hands 
of  one  of  the  great  powers  of  Europe." 

Mr.  Legar6,  Sec.  of  State,  to  Mr.  Everett,  June  13, 1843.  MSS.  Inst.,  Gr.  Brit.  See 
also  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchanan,  Mar.  11,  1853.  MSS.  Inst., 
Gr.  Brit. 

418 


CHAP.  III.]  HAWAII.  [§  62. 

"TLe  Department  will  be  slow  to  believe  tbat  the  Freueb  have  any 
intention  to  adopt  with  reference  to  the  Sandwieh  Islands  the  same  policy 
NvlMch  they  have  i)nrsued  in  regard  to  Tahiti.  If,  however,  in  your  jnd<^- 
ment,  it  should  be  warranted  bj^  circumstances,  you  may  take  a  proper 
opportunity  to  intimate  to  the  minister  for  foreign  affairs  of  France, 
that  the  situation  of  the  Sandwich  Islands  in  respects  to  our  possessions 
on  the  Pacific,  and  the  bonds,  commercial  and  of  other  descriptions,  be- 
tween them  and  the  United  States  are  such  that  we  could  never  with 
indifference  allow  them  to  i)ass  under  the  dominion  or  exclusive  control 
of  any  other  power.  We  do  not  ourselves  covet  sovereignty  over  them. 
We  would  be  content  that  they  should  remain  under  their  present  rulers, 
who,  we  believe,  are  disposed  to  be  just  and  impartial  in  their  dealings 
with  all  nations." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Eives,  July  5,  1850.     MSS.  Inst.,  France. 

"  The  proceedings  of  M.  Dillon  and  the  French  admiral  there,  in  1849, 
so  far  as  we  are  informed  respecting  them,  seem,  both  in  their  origin  and 
in  their  nature,  to  have  been  incompatible  with  any  iust  regard  for  the 
Hawaiian  Government  as  an  independent  state.  They  cannot,  accord- 
ing to  our  impressions,  be  accounted  for  njion  any  other  hypothesis  than 
a  determination  on  the  part  of  those  officers  to  humble  and  annihilate 
that  Government  for  refusing  to  accede  to  demands  which,  if  granted, 
must  have  been  at  the  expense  of  all  self-respect  and  substantial  sover- 
eignty. The  further  enforcement  of  those  demands,  which,  it  ap])ears, 
is  the  object  of  M.  Perrin's  mission,  would  be  tantamount  to  a  subjuga- 
tion of  the  islands  to  the  dominion  of  France.  A  step  like  this  could 
not  fail  to  be  viewed  by  the  Government  and  people  of  the  United 
States  with  a  dissatisfaction  which  would  tend  seriously  to  disturb  our 
existing  friendly  relations  with  the  French  Government.  This  is  a  result 
to  be  deplored.  If,  therefore,  it  should  not  be  too  late,  it  is  hoped  that 
you  will  make  such  representations  ui)on  the  subject  to  the  minister  of 
foreign  affairs  of  France  as  will  induce  that  Government  to  desist  from 
measures  incompatible  ^yith  the  soveriguty  and  independence  of  the 
Hawaiian  Islands,  and  to  make  amends  for  the  acts  which  the  French 
agents  have  already  (iommitted  there  in  contravention  of  the  law  of 
nations,  and  of  the  treaty  between  the  Hawaiian  (Jovernment  and 
France." 

Mr,  Webster,  Sec.  of  State,  to  Mr.  Kives,  June  19,  Idol.    MSS.  luist.,  France. 

"The  Government  of  the  United  States  was  the  first  to  acknowledge 
the  national  existence  of  the  Hawaiian  Government,  and  to  treat  with 
it  as  an  independent  state.  Its  example  was  soon  followed  by  several 
of  the  Governmentsof  Europe,  and  the  United  States,  true  to  its  treaty 
obligations,  has  in  no  case  interfered  Avith  the  Hawaiian  Government  for 
the  purpose  of  opposing  the  course  of  its  own  independent  conduct,  or 
of  dictating  to  it  any  particular  line  of  policy.  In  acknowledging  the  in- 
dependence of  the  islands  and  of  the  Government  established  over  them, 

410 


§  62.]  INTERVENTION.  [CHAP.  III. 

it  was  uot  seekiii<>-  to  promote  auy  peculiar  object  of  its  owu.  What  it 
did,  and  all  that  it  did,  was  done  openly,  in  the  face  of  day,  in  entire 
good  faith,  and  known  to  all  nations.  It  declared  its  real  purpose  to 
be  to  favor  the  establishment  of  a  Government  at  a  very  important  point 
in  the  J^acific  Ocean,  which  should  be  able  to  maintain  such  relations 
with  the  rest  of  th<'  world  as  are  maintained  between  civilized  states. 

"  From  this  purpose  it  has  never  swerved  for  a  single  moment,  nor  is 
it  inclined,  without  the  pressure  of  some  necessity,  to  de])art  from  it 
now,  when  events  have  occurred  giving  to  the  islands  and  to  their  in- 
tercourse with  the  United  States  a  new  aspect  and  increased  impor- 
tance. 

"  This  Government  still  desires  to  see  the  nationality  of  the  Hawaiian 
Government  maintained,  its  independent  administration  of  public  affairs 
respected,  and  its  pi-osperity  and  reputation  increased. 

"  But  while  thus  indisposed  to  exercise  any  sinister  influence  itself 
over  the  councils  of  Hawaii,  or  to  overawe  the  proceedings  of  its  Gov- 
ernment by  the  menace  or  the  actual  application  of  superior  military 
force,  it  expects  to  see  other  powerful  nations  act  in  the  same  spirit. 
It  is,  therefore,  with  unfeigned  regret  that  the  President  has  read  the 
correspondence  and  become  acquainted  with  the  circumstances  occur- 
ring between  the  Hawaiian  Government  and  Mr.  Perrin,  the  commis- 
sioner of  France,  at  Honolulu." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Severance,  July  14, 1851.     MSS.  Inst.,  Hawaii. 

"  The  Hawaiian  Islands  are  ten  times  nearer  to  the  United  States 
than  to  any  of  the  powers  of  Europe.  Five-sixths  of  all  their  commer- 
cial intercourse  is  with  the  United  States,  and  these  considerations,  to- 
gether with  others  of  a  more  general  character,  have  fixed  the  course 
which  the  Government  of  the  United  States  will  pursue  in  regard  to 
them.  The  annunciation  of  this  policy  will  not  surprise  the  Govern- 
ments of  Europe,  nor  be  thought  to  be  unreasonable  by  the  nations  of  the 
civilized  world;  and  that  policy  is,  that  while  the  Government  of  the 
United  States  itself,  faithful  to  its  original  assurance,  scrui)ulously  re- 
gards the  independence  of  the  Hawaiian  Islands,  it  can  never  consent 
to  see  those  islands  taken  possession  of  by  either  of  the  great  commer- 
cial powers  of  Europe,  nor  can  it  consent  that  demands  manifestly  un- 
just ahd  derogatory,  and  inconsistent  with  a  hona  fide  indejiendence, 
shall  be  enforced  against  that  Government." 

Ihid. 

"  It  is  earnestly  to  be  hoped  that  the  diflerences  which  have  for  some 
time  past  been  pending  between  the  Government  of  the  French  Eepub- 
lic  and  that  of  the  Sandwich  Islands,  may  be  peaceably  and  durably 
adjusted  so  as  to  secure  the  independence  of  those  islands.  Long  be- 
fore the  events  which  have  of  late  imi)arted  so  much  importance  to  the 
])OSsessions  of  tlie  United  States  on  the  Pacific  we  acknowledged  the 
independence  of  the  Hawaiian  Government.  This  Government  was  first 
4^0 


CHAP,  ril.]  HAWAII.  [§  62. 

ill  taking  that  step,  and  several  of  the  leading  powers  of  Europe  imme- 
diatelj'  followed.  We  were  influenced  in  this  measure  by  the  existing 
and  prospective  importance  of  the  islands  as  a  place  of  refuge  and  re- 
freshment for  our  vessels  engaged  in  the  whale  fishery,  and  by  the  con- 
sideration that  they  lie  in  the  course  of  the  great  trade  which  must,  at 
no  distant  day,  be  carried  on  between  the  western  coast  of  North  America 
and  Eastern  Asia. 

"We  were  also  influenced  by  a  desire  that  those  islands  should  not 
pass  under  the  control  of  any  other  great  maritime  state,  but  should 
remain  in  an  independent  condition,  and  so  be  accessible  and  useful 
to  the  commerce  of  all  nations.  I  need  not  say  that  the  imi)ortance  of 
these  considerations  has  been  greatly  enhanced  by  the  sudden  and  vast 
development  which  the  interests  of  the  United  States  have  obtained  in 
California  and  Oregon,  and  the  policy  heretofore  adopted  in  regard  to 
those  islands  will  be  steadily  pursued." 

President  Fillmore,  Second  Annnal  Message,  1851. 

"  You  are,  no  doubt,  aware  that  it  has  been  the  constant  desire  of 
this  Government  to  cherish  the  kindest  international  relations  with  the 
Sandwich  Islands,  and  to  assist  them  by  aU  the  moral  influence  it  could 
exert  to  sustain  their  independence.  Happily  the  policy  of  other  Gov- 
ernments at  present  with  respect  to  them  seems  not  to  be  diflerent  from 
our  own.  While  we  do  not  intend  to  attempt  the  exercise  of  any  ex 
elusive  control  over  them,  we  are  resolved  that  no  other  power  or  state 
shall  exact  any  political  or  commercial  privileges  from  them  which  we 
are  not  permitted  to  enjoy,  far  less  to  establish  any  protectorate  over 
them." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Gregg,  Sept.  22,  1853.     MSS.  Inst.,  Hawaii. 

"  The  intercourse  between  our  Pacific  ports  and  the  ports  of  the  dis- 
tant East  is  destined  perhaps  to  be  upon  as  large  a  scale  as  that  which 
we  now  enjoy  with  all  the  world,  and  the  vessels  engaged  in  that  trade 
must  ever  resort  to  the  Sandwich  Islands  for  fuel  and  other  supplies,  as 
has  ever  been  the  case  with  our  whale  ships  in  their  outward  and  in- 
ward voyages.  It  is  consequently  indispensable  to  our  welfare  that 
the  j)olicy  which  governs  them  should  be  liberal,  and  that  it  should 
continue  free  from  the  control  of  any  third  country." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Gregg,  Sept.  22,  1853.     MSS.  Inst.,  Hawaii. 

"I  do  not  think  the  present  Hawaiian  Government  can  long  remain 
in  the  hands  of  the  present  rulers  or  under  the  control  of  the  native 
inhabitants  of  these  islands,  and  both  England  and  France  are  apprised 
of  our  determination  not  to  allow  them  to  be  owned  by  or  to  fall  under 
the  protection  of  these  powers  or  of  any  other  European  nation. 

"  It  seems  to  be  inevitable  that  they  must  come  under  the  control  of 
this  Government,  and  it  would  be  but  reasonable  and  fair  that  these 

421 


§  62.]  INTERVENTION.  [CHAP.  III. 

powers  Khould  acquiesce  in  sucii  ii  disposition  of  them,  provided  the 
transference  was  effected  by  fair  means." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  Deo,  16,  1853.     MSS.  Inst.,  France. 

^'  If  any  foreign  connection  is  to  be  formed,  the  <jjeographical  position 
of  these  ishmds  indicates  that  it  should  be  with  us.  Our  commerce 
with  them  far  exceeds  that  of  all  other  countries ;  our  citizens  are  em- 
barked in  the  most  important  business  concerns  of  that  country,  and 
some  of  them  hold  imi^ortant  public  positions.  In  view  of  the  large 
American  interests  there  established,  and  the  intimate  commercial  rela- 
tions existing  at  this  time,  it  might  well  be  regarded  as  the  duty  of  this 
Government  to  prevent  these  islands  from  becoming  the  appendage  of 
any  other  foreign  power." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Gregg,  Apr.  4, 1854.     MSS.  Inst.,  Hawaii. 

"  This  Government  will  receive  the  transfer  of  the  sovereignty  of  the 
Sandwich  Islands,  with  all  proper  provisions  relative  to  the  existing 
rights  and  interests  of  the  people  thereof,  such  as  are  usual  and  appro- 
priate to  territorial  sovereignty.  It  will  be  the  object  of  the  United 
States,  if  clothed  with  the  sovereignty  of  that  country,  to  promote  its 
growth  and  prosperity.  This  consideration  alone  ought  to  be  a  suffi- 
cient assurance  to  the  people  that  their  rights  and  interests  will  be  duly 
cherished  by  this  Government." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Gregg,  Jan.  31, 1855.     MSS.  Inst.,  Hawaii. 

"  The  United  States  would  uot  regard  with  unconcern  an  attempt  on 
the  part  of  any  foreign  power,  and  especially  any  European  maritime 
power,  to  disturb  the  repose  or  interfere  with  the  security  of  the  Hawaiian 
Islands." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Lee,  Sept.  21,  1855.     MSS.  Notes,  Hawaii. 

The  public  njind  in  the  United  States  was  not,  in  1SG8,  in  a  condition 
to  entertain  the  question  of  the  annexation  of  the  Sandwich  Islands. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Spalding,  July  5,  1868,  MSS.  Inst.,  Hawaii ; 
see  Mr.  J.  C.  Bancroft  Davis  to  Mr.  Peirce,  March  15,  1873,  ibid. 

"  The  acquisition  of  territory  beyond  the  sea  outside  the  present  con- 
fines of  the  United  States,  meets  the  opposition  of  many  discreet  men 
who  have  more  or  less  influence  in  our  councils.  It  cannot  be  entered 
upon  without  very  grave  deliberation,  and  in  full  view  of  all  the  advan- 
tages or  disadvantages  that  may  result. 

"  This  question  in  its  relation  to  the  Sandwich  Islands  is  full  of  inter- 
est, and  has  long  attracted  as  a  possible  question  the  attention  of  many 
persons  here  as  well  as  in  those  islauds.  It  seems  that  events  are  likely 
to  precipitate  it  uj)on  us  for  consideration  as  a  i)ractical  question. 

"The  position  of  the  Sandwich  Islands  as  an  outpost  fronting  and 
commanding  the  whole  of  our  possessions  on  the  Pacific  Ocean,  gives  to 
the  future  of  those  islands  a  peculiar  interest  to  the  Government  and 
422 


CHAP.  III.]  HAWAII.  [§  62. 

people  of  the  United  States.  It  is  very  clear  that  this  Govtniiineut  (-an- 
not  be  expected  to  assent  to  their  transfer  from  their  present  control  to 
that  of  any  powerful  maritime  or  commercial  nation.  Such  transfer  to 
a  maritime  power  would  threaten  a  military  surveillance  in  the  Pacific 
similar  to  that  which  Bermuda  has  afforded  in  the  Atlantic.  The  latter 
has  been  submitted  to  from  necessity,  inasmuch  as  it  was  congenital 
with  our  Government,  but  we  desire  no  additional  similar  outposts  in 
the  hands  of  those  who  may  at  some  future  time  use  them  to  our  disad- 
vantage." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Peirce,  Mar.  25,  1873.     MSS.  lust.,  Hawaii. 

"The  position  of  the  Hawaiian  Islands  in  the  vicinitj^  of  our  Pacific 
Coast,  and  their  intimate  commercial  and  political  relations  with  us, 
lead  this  Government  to  watch  with  grave  interest,  and  to  regard  unfa- 
vorably, any  movement,  negotiation,  or  discussion  aiming  to  transfer 
them  in  any  eventuality  whatever  to  another  power." 

Mr.  Blaiue,  Sec.  of  State,  to  Mr.  Lowell,  Ayr.  23,  1881.     MSS.  lust.,  Gr.  Brit. 

"Your  course,  upon  the  question  to  which  you  have  called  the  atten- 
tion of  the  Department,  is  approved.  While  I  desire  earnestly  to  avoid 
the  use  of  imperative  language  toward  the  Hawaiian  Government,  and 
prefer  that  our  relation  in  any  cousecpient  discussion  should  be  that  of 
friendly  advice  and  support,  this  Government  cannot  permit  any  viola- 
tion, direct  or  indirect,  of  the  terms  and  conditions  of  the  treaty"  of  1875. 

"The  treaty  was  made  at  the  continuous  and  urgent  request  of  the 
Hawaiian  Government.  It  was,  as  it  was  intended  to  be,  an  evidence 
of  the  friendship  of  the  United  States,  and  was  shaped  by  a  large  and 
liberal  disposition  on  our  part  to  c<5iisult  the  wishes  and  interests  of  the 
Hawaiian  Government.  As  you  are  aware,  there  was  much  opposition 
to  some  of  its  concessions  by  our  own  citizens  whose  capital  was  em- 
ployed in  certain  agricultural  industries.  The  term  of  the  treaty  was 
limited  in  order  that  both  parties  might  obtain  practical  experience  of 
its  operation,  and  in  order  to  secure  the  experiment  from  ])ossible  dis- 
turbance it  was  expressly  stipulated — 

"'On  the  part  of  His  Hawaiian  Majesty,  that  so  long  as  this  treaty 
shall  remain  in  force,  he  will  not  make  any  treaty  by  which  any  other 
nation  shall  obtain  the  same  privileges,  relative  to  the  admission  of  any 
articles  free  of  duty,  hereby  secured  to  the  United  States.'    (Article  1 V. ) 

"  It  would  be  an  unnecessary  waste  of  time  and  argument  to  under- 
take an  elaborate  demonstration  of  a  proposition  so  obvious  ;is  that  the 
extension  of  the  privileges  of  this  treaty  to  other  nations  under  a  •'  most- 
favored-natiou  clause"  in  existing  treaties,  would  be  as  flagrant  a  vio- 
lation of  the  explicit  stipulation  as  a  specific  treaty  making  the  con- 
cession. 

"You  are  instructed  to  say  to  the  Hawaiian  Government  that  the 
Government  of  the  United  States  considers  this  stipulation  as  of  the 
very  essence  of  the  treaty,  and  cannot  consent  to  its  abrogation  or  modi- 

423 


^62.]  INTERVENTION.  •  [CHAP.  III. 

fication,  directly  or  indirectly.  You  will  add  that  if  any  other  power 
should  deem  it  proper  to  employ  undue  influence  upon  the  Hawaiian 
Government  to  persuade  or  compel  action  in  derogation  of  this  treaty, 
the  Government  of  the  United  States  will  not  be  unobservant  of  its 
rights  and  interests,  and  will  be  neither  unwilling  nor  unprepared  to 
support  the  Hawaiian  Government  in  the  faithful  discharge  of  its  treaty 
obligations. 

"In  reference  to  the  probability  of  a  judicial  construction  of  the 
treaty  by  the  Hawaiian  courts,  upon  proceedings  instituted  by  a  British 
merchant,  I  would  have  been  glad  if  you  had  been  able  to  furnish  me 
with  the  correspondence  between  the  British  commissioner  and  the  Ha- 
waiian secretary  for  foreign  affairs.  From  your  history  of  the  contro- 
versy, I  lind  it  difficult  to  understand  how  Her  Britannic  Majesty's 
Government  can  consistently  maintain  a  right  of  diplomatic  interven- 
tion for  the  settlement  of  any  claim  for  the  difference  in  duty  imposed 
under  the  British  treaties  and  under  the  treaty  with  the  United  States. 

"Be  that  as  it  may,  a  judicial  decision  of  this  question  by  the  Ha- 
waiian courts  would  be  as  unsatisfactory  to  the  United  States  as  to 
Great  Britain.  I  am  not  aware  whether  or  not  a  treaty,  according  to 
the  Hawaiian  constitution,  is,  as  with  us,  a  supreme  law  of  the  land, 
upon  the  construction  of  which — the  proper  case  occurring — every  citi- 
zen would  have  the  right  to  the  judgment  of  the  courts. 

"But  even  if  it  be  so,  and  if  the  judicial  department  is  entirely  inde- 
pendent of  the  executive  authority  of  the  Hawaiian  Government,  then 
the  decision  of  the  court  would  be  the  authorized  interpretation  of  the 
Hawaiian  Government,  and,  however  binding  uijon  that  Government, 
would  be  none  the  less  a  violation  o*"  the  treaty. 

"In  the  event,  therefore,  that  a  judicial  construction  of  the  trea-ty 
should  annul  the  privileges  stipulated,  and  be  carried  into  practical 
execution,  this  Government  would  have  no  alternative,  and  would  be 
compelled  to  consider  such  action  as  the  violation  by  the  Hawaiian 
Government  of  the  express  terms  and  conditions  of  the  treaty,  and, 
with  whatever  regret,  would  be  forced  to  consider  what  course  in  refer- 
ence to  its  own  interests  had  become  necessary  upon  the  manifestation 
of  such  unfriendly  feeling. 

"The  diligence  and  ability  which  you  have  given  this  subject  render 
perhaps  any  further  instruction  unnecessary,  but  I  will  suggest  that  in 
your  communications  with  the  Hawaiian  Government  it  is  desirable 
that  you  should  convey  the  impression  that  the  Government  of  the 
United  States  believes  that  the  Hawaiian  Government  desires  and 
intends  to  carry  out  the  provisions  of  the  treaty  in  ]ierfect  good  faith, 
and  that  we  understand  and  appreciate  the  urijust  pressure  of  foreign 
interests  and  influence  brought  to  divert  it  from  its  plain  and  honor- 
able duty.  The  position  of  the  Government  of  the  United  States  in 
your  representations  should  be  rather  that  of  encouragement  of  the 
424 


CHAP.  III.]  HAWAII.  [§  G2. 

Hawaiian  Government  to  persevere  in  the  faithful  diischargeof  its  treaty 
obligations,  than  complaint  of  any  anticipated  dereliction." 

Mr.  Blaiue,  Sec.  of  State,  to  Mr.  Comly,  June  30,  1381.     MSS.  Inst.,  Hawaii ; 
For.  Eel..  1881. 

"In  your  dispatcli  Xo.  189  you  have  informed  this  Department  of 
the  efforts  made  by  the  British  commissioner  to  prejudice  the  interests 
and  influence  of  the  United  States  in  the  Hawaiian  Islands;  and  you 
properly  assume  that  such  eflbrts,  so  far  as  they  tend  to  im])rovc  the 
diplomatic  jiosition  of  his  country  by  his  personal  conduct,  must  be 
counteracted  by  similar  endeavors  on  your  part  without  the  formal 
intervention  of  this  Government. 

"The  action  of  the  Government  must  necessarily  wait  upon  the  actual 
occurrence  or  threatened  probability  of  some  official  transaction  in  con- 
flict with  its  treaty  rights.  But  with  the  proper  information  before  it 
the  Department  would  undoubtedly  instruct  you  to  anticipate  any  such 
transaction  by  such  diplomatic  remonstrance  as  our  relations  with 
Hawaii  would  justify. 

"It  is  difficult  to  say  that  the  information  derived  through  the  news- 
papers in  reference  to  a  supposed  coolie  convention  with  Great  Britain 
is  of  a  character  to  require  our  official  intervention.  But  I  take  it  for 
granted  that,  since  the  return  of  King  Kalakaua,  you  will  be  able  to 
learn  whether  such  a  convention  is  contemplated,  and  if,  in  your  opin- 
ion, there  is  enough  in  the  general  rumors  to  warrant  it,  you  will  con- 
sider yourself  as  instructed  to  make  formal  inquiry  of  the  Hawaiian 
Government  if  any  such  project  is  entertained. 

"  You  say  that  the  proposed  convention  provides  for  a  'protector  of  the 
coolie  immigrants,'  who  tries  all  cases  of  disputes  arising  among  the 
coolies  themselves,  and  also  between  coolies  and  citizens  of  the  coun- 
try where  they  reside;  and  cases  of  an  appeal  from  his  judgment  go, 
not  to  the  courts  of  the  country,  but  to  the  British  consul  or  diplomatic 
representative. 

"I  do  not  understand  whether  this  is  a  recital  from  some  existing 
convention  or  a  rumor  of  what  the  contemplated  conventimi  is  expected 
to  be. 

"In  the  treaty  between  Great  Britain  and  the  Netherlands  relative  to 
emigration  of  laborers  from  India  to  the  Dutch  colony  of  Surinam, 
signed  in  1870  and  ratified  in  18713,  and  which  is  the  most  recent  to 
which  I  have  been  able  to  refer,  I  find  the  following  provision : 

"XIX.  All  emigrants  within  the  provision  of  this  convention -shall, 
in  the  same  manner  as  other  subjects  of  the  Ibitish  Crown,  and  con- 
formably to  the  ordinary  rules  of  international  law,  enjoy  in  the  Neth- 
erland  colony  the  right  of  claiming  the  assistance  of  the  British  con- 
sular agent;  and  no  obstacle  shall  be  opposed  to  the  laborers  resorting 
to  the  consular  agent,  and  communicating  with  him,  without  prejudice, 
however,  to  the  obligations  arising  out  of  his  engagements.' 

425 


§  62.]  INTERVENTION.  [CHAP.  III. 

''Properly  iuterproted  ami  fairly  applied,  I  do  not  see  any  reasonable 
ground  ot'objeetion  to  this  or  to  a  similar  provision.  But  a  convention 
coiitaiuiu^;-  stipulations  such  as  you  describe  would  be  very  different. 
To  secure  to  the  coolie  ininii.tj:rants  from  India,  who  are  unquestionably 
British  subjects,  sut^li  an  extreme  privilege  of  exterritoriality  would  be 
exrendiui;-  them  advantages  not  ])ossessed  by  the  subjects  of  any  other 
power.  And  as  Artie  es  VIII  and  X  of  the  treaty  between  the  United 
States  and  th(»  Hawaiian  Islands  of  1840  guarantee  to  the  citizens  and 
(•onsular  ofhcers  of  the  Unitetl  States  the  treatment  of  the  njost  favored 
nation,  and  a  jiarticipation  in  all  itrivileges  granted  to  others,  the  United 
States  would  have  to  insist  upon  equal  treatment  for  its  citizens  and 
consuls,  and  it  can  scarcely  be  <l()ubted  that  other  ])owers  would  make 
the  same  demand. 

''A  consideration  of  the  embarrassmeni  which  such  a  condition  of  for- 
<  ign  rights  and  privileges  would  create  for  the  Hawaiian  Government, 
would  i)resent  almost  insuperable  difitlculties  in  the  way  of  such  a  con- 
vention. 

'•But  if  negotiations  such  as  you  describe  are  really  in  progress,  you 
will  ask  for  an  interview  with  the  secretary  for  foreign  affairs  and  make 
the  following  representation  of  the  views  of  the  United  States  : 

"  The  Government  of  the  Uuited  States  has,  with  unvarying  consist- 
ency, manifested  respect  for  the  indejiendeuce  of  the  Hawaiian  King- 
dom, and  an  earnest  desire  for  the  welfare  of  its  ])eople.  It  has  always 
felt  and  acted  on  the  conviction  that  the  possession  of  the  islands  by  a 
peaceful  and  prosperous  power,  with  which  there  was  no  possibility  of 
<-ontroversy  or  collision,  was  most  desirable,  in  reference  to  its  own  large 
and  ra})idly  increasing  interests  on  the  Pacific.  It  has  declined,  even 
at  the  request  of  the  Hawaiian  people,  to  assume  over  their  affairs  a 
protectorate,  which  would  only  be  a  thinly  disguised  domination,  and  it 
has  confined  its  efforts  and  influence  to  strengthen  their  Government, 
and  open  to  their  commerce  and  enterprise  the  readiest  and  most  i)rofit- 
able  connection  with  its  own  markets;  but  this  policy  has  been  based 
upon  our  belief  in  the  real  and  substantial  independence  of  Hawaii.  The 
Government  of  the  United  States  has  always  avowed  and  now  repeats 
that,  under  no  circumstances,  will  it  permit  the  transfer  of  the  territory 
or  sovereignty  of  these  islands  to  any  of  the  great  Euroi)ean  powers. 
It  is  needless  to  restate  the  reasons  upon  which  that  determination  rests. 
It  is  too  obvious  for  argument  that  the  possession  of  these  islands  by 
a  great  maritime  power  would  iu)t  oidy  be  a  dangerous  diminution  of 
the  Jus',  and  necessary  influence  of  the  United  States  in  the  waters  of 
the  Pacific,  but  in  case  of  international  diificulty  it  would  be  a  positive 
threat  to  interests  too  large  and  im[)ortant  to  be  lightly  risked. 

"  Neither  can  the  Government  of  the  Uuited  States  allow  an  arrange- 
ment which,  by  diplomatic  finesse  or  legal  technicality,  substitutes  for 
the  native  and  legitimate  constitutional  Government  of  Hawaii,  the  con- 
trolling influence  of  a  great  foreign  power.     This  is  not  the  real  and 
426 


CHAP.  III.]  HAWAII.  [§  62. 

substantial  iDdepeudeiicc  which  it  desires  to  see  and  wiiich  it  is  pre- 
pared to  support.  xVnd  this  (ioverninent  would  consider  a  scheme  by 
which  a  large  mass  of  British  subjects,  forming  in  time  not  improbably 
the  majority  of  its  population,  should  be  introduced  into  Hawaii,  made 
independent  of  the  native  Government,  and  be  ruled  by  British  author- 
ities, judicial  and  dii)lomatic,  us  one  entirely  inconsistent  with  the 
friendly  relations  now  existing  between  us,  as  trenching  upon  treaty 
rights  which  we  have  secured  by  no  small  consideration,  and  as  certain 
to  involve  the  two  countries  in  irritating  and  uuprolitable  discussion. 

"  In  thus  instructing  you,  however,  I  must  impress  upon  you  tliat 
much  is  trusted  to  your  discretion.  There  would  be  neither  propriety 
nor  wisdom  in  making  such  declarations  unnecessarily  or  prematurely. 
If,  therefore,  you  tind  that  the  proposed  convention  is  not  one  with  the 
extreme  provisions  to  which  you  refer,  or  if  you  have  reason  to  believe 
that  your  rei)resentations  of  the  unfriendly  impression  which  it  would 
make  here  will  be  sufficient  to  change  the  i)urpose  of  the  Hawaiian  Gov- 
ernment, you  will  confine  yourself  to  ordinary  diplomatic  remonstrance. 
And,  in  any  event,  it  will  be  prudent  to  indicate  that  such  would,  in 
your  opinion,  be  the  view  taken  by  this  Government  before  making  the 
formal  protect,  which,  under  the  contingency  of  persistent  adverse 
action  on  the  part  of  the  Hawaiian  Government,  yoa  are  authorized  to 
make." 

Mr.  Bkiine,  Sec.  of  State,  to  Mr.  Comly,  Nov.  19,  1881.    MSS.Iust.,  Hawaii; 
For.  Eel.,  1831. 

"  The  intelligent  and  suggestive  character  of  your  recent  dispatches 
naturallyleadsmetoa  review  of  the  relationship  of  the  Hawaiian  King- 
dom to  the  United  States  at  somewhat  greater  length  than  was  practi- 
cable in  the  limited  scope  of  my  instruction  of  November  19.  That 
dispatch  was  necessarily  confined  to  a  consideration  of  the  immediate 
question  of  a  possible  treaty  engagement  with  Great  Britain  which 
would  give  to  that  i)ower  in  Hawaii  a  degree  of  extrateiritoriality  of 
jurisdiction  inconsistent  with  the  relations  of  the  islands  to  the  other 
powers,  and  especially  to  the  United  States. 

"  With  the  abandonment  of  feudal  government  by  JvingKamehameha 
III  in  1839,  and  the  inauguration  of  constitutional  methods,  tlie  history 
of  the  i)olitical  relation  of  Hawaii  to  the  world  at  large  may  very  prop- 
erly be  said  to  begin.  The  recognition  of  indepeiulent  sovereignty  by 
the  great  i)owers  took  place  soon  after  that  act  on  the  part  of  the  United 
States,  dating  frojn  1844.  Even  at  that  early  day,  before  the  United 
States  had  become  a  power  on  the  Pacific  coast,  the  commercial  activity 
of  our  people  was  manifested  in  their  intercourse  with  the  islaiuls  of 
Oceanica,  of  which  the  Hawaiian  group  is  the  northern  extremity.  In 
1848  the  treaty  of  Guadalupe  Hidalgo"  confirmed  the  territorial  exten- 
sion of  the  United  States  to  the  Pacific,  and  gave  to  the  Union  a  coast 
line  on  that  ocean  little  inferior  in  extent,  and  superior  in  natural 

427 


§  62.]  INTERVENTION.  [CHAP.  III. 

wealtb,  to  the  Atlantic  t^eaboard  of  the  origiual  thirteen  States.  In 
1848-'49  the  discoveries  of  gold  in  California  laid  the  foundation  for  the 
marvelous  development  of  the  western  coast,  and,  in  that  sameyear  the 
necessities  of  our  altered  relationship  to  the  Pacific  Ocean  found  expres- 
sion in  a  comprehensive  expression  of  friendship,  commerce  and  navi- 
tion  with  the  sovereign  Kingdom  of  Hawaii. 

"  The  material  connection  between  the  Hawaiian  Islands  and  the 
Pacific  coast  of  the  Union  was  natural  and  inevitable.  But  lately 
admitted  to  the  family  of  separate  states,  Hawaii  was  necessarily  drawn 
into  closer  kinship  with  California,  then  just  entering  on  a  i^atli  of  pros- 
perity and  greatness  whose  rapidity  of  development  the  world  has 
never  seen  equaled.  Hence  the  movements  toward  intimate  commercial 
relations  between  the  two  countries  which,  after  the  progressive  nego- 
tiations of  1856,  1867,  and  1869,  culminated  in  the  existing  reciprocity 
treaty  of  January  30,  1875,  'which  gave  to  the  United  States  in  Hawaii, 
and  to  Hawaii  in  the  United  States,  trading  rights  and  privileges  in 
terms  denied  to  other  countries. 

"  I  have  spoken  of  the  Pacific  coast  line  given  to  the  American  Union 
by  the  cession  of  California  in  1848,  as  little  inferior  in  extent,  and 
superior  in  natural  wealth,  to  the  Atlantic  sea-board  of  the  original 
Union.  Since  that  time  our  domain  on  the  Pacific  has  been  vastly  in- 
creased by  the  purchase  of  Alaska.  Taking  San  Francisco  as  the  com- 
mercial center  on  the  western  slope,  a  line  drawn  northwestwardly  to 
the  Aleutiaii.  group,  marks  our  Pacific  border  almost  to  the  confines  of 
Asia.  A  corresponding  line  drawn  southwestwardly  from  San  Fran- 
cisco to  Honolula  marks  the  natural  limit  of  the  ocean  belt  within 
which  our  trade  with  the  oriental  countries  must  flow,  and  is,  moreover, 
the  direct  line  of  communication  between  the  United  States  and  Aus- 
tralasia. Within  this  belt  lies  the  commercial  domain  of  our  western 
coast. 

"  I  have  had  recent  occasion  to  set  forth  the  vitally  integral  importance 
of  our  Pacific  possessions,  in  a  circular  letter  addressed  on  the  24th  of 
June  last  to  our  representatives  in  Europe,  touching  the  necessary 
guarantees  of  the  proposed  Panama  Canal  as  a  purely  American  water- 
way to  be  treated  as  part  of  our  own  coast  line.  The  extension  of  com- 
mercial empire  westward  from  those  States  is  no  less  vitally  important 
to  their  developnu^nt  than  is  their  communication  with  the  eastern  coast 
by  the  Isthmian  channel.  And  when  we  survey  the  stupendous  progress 
made  by  the  western  coast  during  the  thirty  years  of  its  national  life 
as  a  part  of  our  dominion,  its  enormous  increase  of  population,  its  vast 
resources  of  agriculture  and  mines,  and  its  boundless  enter])rise,  it  is 
not  easy  to  set  a  limit  to  its  commercial  activity  or  foresee  a  check  to  its 
maritime  supremacy  in  the  waters  of  the  Orient,  so  long  as  those  waters 
atibrd,  as  now,  a  free  and  neutral  scope  for  our  p(?aceful  trade. 

"In  thirty  years  the  United  States  has  acquired  a  legitimately  domi- 
nant influence  in  the  ^N^orth  Pacific,  which  it  can  never  consent  to  see 
428 


CHAP.  III.]  HAWAII.  [§  62. 

decreased  by  the  intrusion  therein  of  auy  clement  of  influence  hostile 
to  its  own.  Tlic  situation  of  the  Hawaiian  Islands,  jiivinj^  them  the 
strategic  control  of  the  North  Pacific,  brings  their  possession  within  the 
range  of  questions  of  purely  American  policy,  as  much  so  as  that  of  the 
Isthmus  itself.  Hence  the  necessity,  as  recognized  in  our  existing  treaty 
relations,  of  drawing  the  ties  of  intimate  relationship  between  us  and 
the  Hawaiian  Islands  so  as  to  make  them  practically  a  part  of  the 
American  system  without  derogation  of  their  absolute  independence. 
The  reciprocity  treaty  of  1875  has  made  of  Hawaii  the  su;^ar-raising 
field  of  the  Pacidc  slope,  and  gives  to  our  manufacturers  therein  the  same 
freedom  as  in  California  and  Oregon.  That  treaty  gave  to  Hawaii  its 
first  great  impetus  in  trade,  and  developed  that  activity  of  production 
which  has  attractotl  the  eager  attention  of  European  ix)wers,  anxious 
to  share  in  the  prosperity  and  advantages  which  the  United  States 
have  created  in  mid-ocean.  From  1877,  the  first  full  year  succeeding 
the  conclusion  of  the  reciprocity  treaty,  to  1880,  the  imports  from 
Hawaii  to  the  United  States  nearly  doubled,  increasing  from  82,550,335 
in  value  to  $4,606,444,  and  in  this  same  period  the  exports  from  the 
United  States  to  Hawaii  rose  from  $1,272,949  to  $2,026,170.  In  a  word, 
Hawaii  is,  by  the  wise  and  beneficent  provisions  of  the  treaty,  brought 
within  the/iircle  of  the  domestic  trade  of  the  United  States,  and  our 
interest  in  its  friendly  neutrality  is  akin  to  that  we  feel  in  the  guaran 
teed  independence  of  Panama.  On  the  other  hand,  the  interests  of 
Hawaii  must  inevitably  turn  toward  the  United  States  in  the  future, 
as  in  the  present,  as  its  natural  and  sole  ally  in  conserving  the  domin- 
ion of  botli  in  the  Pacific  trade.  Your  own  observation,  during  your 
residence  at  Honolulu,  has  shown  you  the  vitality  of  the  American 
sentiment  which  this  state  of  things  has  irresistibly  developed  in  the 
islands.  I  view  that  sentiment  as  the  logical  recognition  of  the  needs 
of  Hawaii  as  a  member  of  the  American  system  of  states  rather  than  as 
a  blind  desire  for  a  protectorate  or  ultimate  annexation  to  the  American 
Union. 

"This  Government  has  on  previous  occasions  been  brought  face  to 
face  with  the  question  of  a  protectorate  over  the  Hawaiian  group.  It 
has,  as  often  as  it  arose,  been  set  aside  in  the  interest  of  such  commer- 
cial union  and  such  reciprocity  of  benefits  as  would  give  to  Hawaii  the 
highest  advantages,  and  at  the  same  time  strengthen  its  independent 
existence  as  a  sovereign  state.  In  this  I  have  summed  up  the  whole 
disposition  of  the  United  States  toward  Hawaii  in  its  present  condi- 
tion. 

"  The  policy  of  this  country  with  regard  to  the  Pacific  is  the  natural 
complement  to  its  Atlantic  policy.  The  history  of  our  European  rela- 
tions for  fifty  years  shows  the  jealous  concern  with  which  the  United 
States  has  guarded  its  control  of  the  coast  from  foreign  interference, 
and  this  without  extension  of  territorial  possession  beyond  tlie  main- 
land.    It  has  always  been  its  aim  to  preserve  the  friendly  neutrality  of 

429 


§  r>2.]  INTERVENTION.  [CHAP.  III. 

the  adjacent  states  and  insular  possessions.  Its  attitude  toward  Cuba 
is  in  ])oint.  That  rich  island,  the  key  to  the  Gulf  of  Mexico,  and  the 
field  for  our  most  extended  trade  in  the  Western  hemisphere  is,  though 
in  the  hands  of  Spain,  a  part  of  the  American  commercial  system.  Our 
relations,  present  and  prospective,  toward  Cuba  have  never  been  more 
ably  set  forth  than  in  the  remarkable  note  addressed  by  my  predecessor, 
Mr,  Secretary  Everett,  to  the  ministers  of  Great  Britain  and  France  in 
Washington,  on  the  1st  of  December,  1852,  in  rejection  of  the  suggested 
tripartite  alliance  to  forever  determine  the  neutrality  of  the  Spanish 
Antilles.  In  response  to  the  proposal  that  the  United  States,  Great 
Britain,  and  France  should  severally  and  collectively  agree  to  forbid 
the  acquisition  of  control  over  Cuba  by  any  or  all  of  them,  Mr.  Everett 
showed  that,  without  forcing  or  even  coveting  possession  of  the  island, 
its  condition  was  essentially  an  American  question  ;  that  the  renuncia- 
tion forever  by  this  Government  of  contingent  interest  therein  would 
be  far  broader  than  the  like  renunciation  by  Great  Britain  or  France ; 
that  if  ever  ceasing  to  be  Spanish,  Cuba  must  necessarily  become 
American,  and  not  fall  under  any  other  European  domination,  and  that 
the  ceaseless  movement  of  segregation  of  American  interests  from  Euro- 
pean control  and  unification  in  a  broader  American  sphere  of  independ- 
ent life  could  not  and  should  not  be  checked  by  any  arbitrary  agreement. . 

"  Xearly  thirty  years  have  demonstrated  the  wisdom  of  the  attitude 
then  maintained  by  Mr.  Everett,  and  have  made  indispensable  its  con- 
tinuance and  its  extension  to  all  parts  of  the  American  Atlantic  system 
where  a  disturbance  of  the  existing  status  might  be  attempted  in  the 
interest  of  foreign  powers.  The  ])resent  attitude  of  this  Government 
toward  any  European  project  for  the  control  of  an  Isthmian  route  is 
but  the  logical  sequence  of  the  resistance  made  in  1S52  to  the  attempted 
])ressure  of  an  active  foreign  influence  in  the  West  Indies. 

"  Hawaii,  although  much  farther  from  the  Californian  coast  than  is 
Cuba  from  the  Floridian  peninsula,  holds  in  the  western  sea  much  the 
same  position  as  Cuba  in  the  Atlantic.  It  is  the  key  to  the  maritime 
dominion  of  the  Pacific  States,  as  Cuba  is  the  key  to  the  Gulf  trade. 
The  material  possession  of  Hawaii  is  not  desired  by  the  United  States 
any  more  than  was  that  of  Cuba.  But  under  no  circumstances  can  the 
United  States  permit  any  change  in  the  territorial  control  of  either 
which  would  cut  it  adrift  from  the  American  system,  whereto  they  both 
indispensably  belong. 

"  In  this  aspect  of  the  question  it  is  readily  seen  with  what  concern 
this  Government  must  view  any  tendency  toward  introducing  into 
Hawaii  new  social  elements  destructive  of  its  necessarily  American 
character.  The  steady  diminution  of  the  native  population  of  the 
islands,  amounting  to  some  10  per  cent,  between  1S72  and  1878,  and 
still  continuing,  is  doubtless  a  cause  of  great  alarm  to  the  Government 
of  the  Kingdom,  and  it  is  no  wonder  that  a  solution  should  be  sought 
with  eagerness  in  any  seemingly  practicable  quarter.  The  problem,  how- 
43U 


CIIAl'.   III.]  HAWAII.  [§  62 

ever,  is  not  to  be  met  by  a  substitution  of  Mongolian  supremacy  for 
native  control,  as  seems  at  iirst  sight  possible  through  the  rai)i(l  in- 
crease in  Chinese  immigration  to  the  islands.  Neither  is  a  wliolesale 
introduction  of  the  coolie  element,  professedly  Anglo-Indian,  likely  to 
aftbrd  any  more  satisfactory  outcome  to  the  difficulty.  The  Hawaiian 
Islands  cannot  be  joined  to  the  Asiatic  system.  If  they  drift  from  their 
iii(Iei)endent  station  it  must  be  toward  assimilation  and  identification 
with  the  American  system,  to  which  they  belong  by  the  operation  of 
natural  laws  and  nuist  belong  by  the  operation  of  political  necessity. 

"I  have  deemed  it  necessary  to  go,  with  somewhat  of  detail,  into  the 
real  nature  of  our  relations  toward  Hawaii,  in  order  that  you  may  iutel- 
li;;entl3'  construe  my  recent  instructions  in  the  light  of  our  true  and 
necessary  policy  on  the  Pacific.  It  may  also  tend  to  simplify  your  inter- 
course with  the  native  Government  if  you  are  in  a  position  to  disabuse 
the  minds  of  its  statesmen  of  any  belief  or  impression  that  our  course 
is  selfishly  intiiisive  or  looks  merely  to  the  exclusive  retention  of  tran- 
sient advantages  of  local  commerce  in  which  other  countries  seek  a 
share.  The  United  States  was  one  of  the  first  among  the  great  nations 
of  the  world  to  take  an  active  interest  in  the  ujibnilding  of  Hawaiian 
independence,  and  the  creation  of  a  new  and  potential  life  for  its  ])eople. 
It  has  consistently  endeavored,  aiul  with  success,  to  enlarge  the  ma- 
terial jn^osperity  of  Hawaii  on  such  independent  basis.  It  proposes  to 
be  equally  unremitting  in  its  etlbrts  hereafter  to  maintain  and  develop 
the  advantages  which  have  accrued  to  Hawaii,  and  to  draw  closer  the 
ties  which  imperatively  unite  it  to  the  great  body  of  xVmerican  common- 
wealths. 

"  In  this  line  of  action  the  United  States  does  its  simi)le  duty  both  to 
Hawaii  and  itself,  and  it  cannot  permit  such  obvious  neglect  of  national 
interest  as  would  be  involved  by  silent  acquiescence  in  any  movement 
looking  to  a  lessening  of  those  American  ties  and  the  substitution  of 
alien  and  hostile  interests.  It  firmly  believes  that  the  position  of  the 
Hawaiian  Islands  as  the  key  to  the  dominion  of  the  American  Pacific 
demands  their  neutrality,  to  which  end  it  will  earnestly  cooperate  with 
the  native  Government.  And  if,  through  any  cause,  the  maintenance 
of  such  apositiou  of  neutrality  should  be  found  by  Hawaii  to  I)e  imprac- 
ticable, this  Government  would  then  unhesitatingly  meet  the  altered 
situation  by  seeking  an  avowedly  American  solution  for  the  grave 
issues  presented. 

"The  communication  to  the  Hawaiian  Government  of  the  views  herein 
expressed  is  left,  both  as  to  manner  and  extent,  to  your  own  discretion. 
If  the  treaty  relations  with  (ireat  Britain,  (  f  which  my  last  instruction 
treats,  prove  to  be  of  such  a  nature  as  to  require  the  communication  of 
a  formal  protest  in  the  premises  to  the  Hawaiian  minister  of  foreign 
affairs,  it  would  probably  be  wise  for  you  to  give  him  a  copy  of  this  dis- 
patch as  a  just  and  temperate  exposition  of  the  intentions  of  this  Gov- 
ernment, and  a  succinct  explanation  of  the  reasons  which  have  induced 

431 


§  62.]  INTERVENTION.  [CHAP.  III. 

such  a  protest.  Even  if  the  formal  delivery  hereof  to  the  miDister 
should  not  appear  advisable,  it  would  be  well  for  you  to  reflect  this 
policy  iu  your  conversatious  with  the  public  men  at  Honolulu,  who 
will,  I  am  sure,  find  these  views  in  harmony  with  the  true  interests  of 
the  Hawaiian  Kingdom  as  they  are  with  those  of  the  United  States." 

Mr.  Blaiue,   Sec.  of  State,  to  Mr.  Comly,  Dec.   1,  1881.     MSS.  Inst.,  Hawaii; 
For.  Rel.,  1881. 

"  There  is  little  doubt  that  were  the  Hawaiian  Islands,  by  annexation 
or  distinct  protection,  a  part  of  the  territoiT  of  the  Union,  their  fertile 
resources  for  the  growth  of  rice  and  sugar  would  not  onl}*  be  controlled 
by  American  capital,  but  so  profitable  a  field  of  labor  wouhl  attract  in- 
telligent workers  thither  from  the  United  States. 

"A  purely  American  form  of  colonization  in  such  a  case  would  meet 
all  the  phases  of  the  problem.  Within  our  borders  could  be  found  the 
capital,  the  intelligence,  the  activity,  and  the  necessary  labor  trained  iu 
the  rice  swamps  and  cane  fields  of  the  Southern  States.  And  it  may 
be  well  to  consider  how,  even  in  the  chosen  alternative  of  maintaining 
Hawaiian  independence,  these  prosperous  elements  could  be  induced 
to  go  from  our  shores  to  the  islands,  not  like  the  ccolies,  practically  en- 
slaved, not  as  human  machines,  but  as  thinking,  intelligent,  working 
factors  in  the  advancement  of  the  material  interests  of  the  islands. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Coinly,  Dec.  1,  1881.     MSS.  Inst.,  Hawaii. 

"  Your  Xo.  217,  of  the  8th  instant,  in  which  you  report  the  political 
tendencies  now  making  themselves  manifest  in  the  islands,  and  the 
movement  in  the  direction  of  onerous  taxation  of  capital  and  property 
to  a  degree  which  cannot  fail  to  work  injury  to  the  foreign  interests  and 
enterprise  which  have  built  up  Hawaiian  prosperity,  has  been  read  with 
attention. 

"It  cannot  be  doubted  that  indiscriminate  and  reckless  exercise  of  the 
tax  levying  power  by  those  por*^ions  of  the  native  element  who  have 
little  or  no  taxable  interests  at  stake  must  react  harmfully  on  the  essen- 
tial elements  of  insular  prosperity.  Independently  of  the  consideration 
that  a  large  part  of  the  operating  capital  and  mechanical  enterprises  of 
Hawaii  has  been  contributed  by  citizens  of  the  United  States,  this  Gov- 
ernment feels  itself  so  kindly  bound  to  Hawaii  by  the  traditions  of  past 
intercourse  that  it  would  not  hesitate  to  remonstrate  with  the  Hawaiian 
Government  against  the  adoption  of  a  short-sighted  policy  which  would 
be  alike  harmful  to  existing  vested  interests  and  repellantof  the  further 
influx  of  capital  from  abroad. 

"While  this  Government  recognized  from  the  first  the  constitutional 
sovereignty  of  Hawaii,  and  still  recognizes  her  right  to  adjust  internal 
matters  of  taxation  and  revenue  on  constitutional  principles,  yet  it  can- 
not permit  to  pass  without  very  urgent  protest  in  all  jiroper  quarters  a 
measure  subversive  of  the  material  interests  of  so  many  of  its  citizens 
who,  on  the  faith  of  international  comity,  have  given  their  wealth,  labor, 
432 


CHAP.  III.]  HAWAII.  [§  62. 

and  skill  to  aid  in  the  prosperity  of  Hawaii.  And  it  makes  this  ])rotest 
the  more  earnestly,  inasmuch  as  the  treaty  relations  between  the  two 
countries  (in  which  Hawaiian  interests  were  even  more  subserved  than 
our  own)  are  such  as  to  give  the  United  States  the  moral  right  to  expect 
that  American  property  in  Hawaii  will  be  no  more  burdened  than  would 
Hawaiian  property  in  the  United  States." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Comly,  May  31,  1882.     MSS.  Inst., 
Hawaii ;  For.  Eel.,  1882. 

"  For  several  years  the  Pacific  Mail  Steamship  Company  has  employed 
four  of  its  vessels  between  San  Francisco  and  Australia,  which  on  both 
outward  and  homeward  trips  have  stojjped  at  the  Sandwich  Islands. 
Their  vessels  on  the  China  line  have  also  made  such  stops,  as  have  those 
of  the  Occidental  and  Oriental  line  of  British  steamers  plying  between 
San  Francisco  and  China.  In  August  last  the  Hawaiian  Government 
granted  to  the  Pacific  Mail  Steamship  Company  the  privilege  of  carry- 
ing Chinese  emigrant  passengers  to  the  Sandwich  Islands  from  China, 
granting  at  the  same  time  a  like  })rivilege  to  the  Occidental  and  Ori- 
ental Steamship  Company,  which  is  organized  under  the  laws  of  Great 
Britain,  and  making  the  privilege  exclusive  to  these  two  companies. 

"  In  the  letter  of  the  minister  of  foreign  affairs,  conveying  this  grant, 
the  assurance  is  expressly  given  to  the  Pacific  Mail  Steamship  Com- 
pany, that  while  the  Government  is  not  in  a  position  to  fix  any  definite 
time  during  which  the  arrangement  shall  last,  no  change  will  be  ujade 
without  reasonable  warning  to  that  company,  unless  some  emergency, 
not  then  foreseen,  should  arise. 

"  This  privilege  is  regarded  by  the  company  as  of  great  consequence, 
as  it  would  probablj'  enable  them  to  continue,  even  through  the  dull 
season,  the  regular  trips  of  their  vessels  bearing  the  United  States 
mail. 

"  But  soon  after  this  privilege  was  granted,  Mr.  C.  Spreckles.  of  San 
Francisco,  a  large  owner  in  the  Dceam  Steam  Navigation  Company 
recently  established  between  San  Francisco  and  the  Hawaiian  Islands, 
informed  the  Pacific  Mail  Steamship  Company  that  unless  the  <U'mand 
previously  made  through  him  that  the  calling  of  the  company's  xVns- 
tralian  steamers  at  Honolulu  be  discontinued,  he  would  procure  an  abro- 
gation of  its  i)rivilege  of  landing  Chinese  ])assengers  at  that  port. 

"The  company,  distrusting  his  ability  to  accomplish  this  object,  de- 
clined the  proposition,  and  received  thereafter  notice  from  the  foreign 
minister,  dated  October  15  last,  that  his  Government  had  entered. into 
an  engagement  with  the  Oceanic  Steamship  Com])any,  conferring  on 
that  company  exclusive  i)rivilege  to  transport  Chinese  immigrants,  and 
that  after  January  1,  1S.S4.  permits  would  not  be  issued  by  Hawaiian 
consular  officers  in  China  or  the  United  States  for  such  purpose  to  ves. 
sels  of  other  companies. 

S.  Mis.  162— VOL.  I 23  ^33 


§  ()2.1  INTERVENTION.  [CHAP.  III. 

"Mr.  Lauterbach  further  states  tbat  the  exclusive  rigbts  thus  con- 
ferred upon  the  Oceanic  line  cannot  be  enjoyed  by  it  directly,  inasmuch 
as  it  does  not  appear  that  it  has  ever  proposed  to  perform  any  service 
between  the  Sandwich  Islands  and  China,  and  that,  in  keeping  with 
this  conclusion,  Mr.  Spreckles,  upon  the  refusal  of  the  Pacific  Mail 
Steamship  Company  to  divert  its  Australian  vessels  from  Honolulu, 
proffered  to  the  British  company,  the  Occidental  and  Oriental  line,  the 
exclusive  i)rivilege  conferred  on  the  Oceanic  line  by  the  Hawaiian  Gov- 
ernment. 

"While  the  offer  has  not  yet  been  accepted,  Mr.  Lauterbach  expresses 
the  expectation  that  it  will  be,  and  that  the  result  will  be  the  creation, 
by  these  acts,  of  a  special  and  exclusive  privilege  to  a  British  company. 

"  The  i^rovisions  of  treaty  obligations  between  Hawaii  and  the  United 
States  are  referred  to  as  contravefied  by  an  arrangement  of  the  char- 
acter anticipated^  and  the  Department  is  asked  to  remonstrate  in  the 
premises  in  behalf  of  the  Pacific  Mail  Steamship  Company. 

"  The  practical  effect  of  the  proposed  exclusive  grant  or  concession 
by  the  Hawaiian  Government  to  the  Oceanic  Line,  of  San  Francisco,  of 
which  Mr.  Spreckles  is  the  controlling  manager,  if  not  the  sole  owner, 
and  the  transfer  by  that  gentleman  of  the  franchise  or  right  thus  granted 
to  the  Occidental  and  Oriental  Company,  must  be  to  establish  and  main- 
tain a  discrimination  against  the  Pacific  Mail  Steamship  Company  in 
regard  to  an  important  and  profitable  element  of  their  carrying  trade; 
and  this,  as  it  is  conceived  by  this  Government,  would  be  in  contraven- 
tion of  the  spirit  of  the  first  and  second  articles  of  the  treaty  of  Decem- 
ber, 1849,  between  the  United  States  and  the  Hawaiian  Islands,  and 
directly  contrary  to  the  letter  and  spirit  of  the  sixth  article  of  that 
treaty,  the  provisions  of  which  are  as  follows  : 

"'  Steam  vessels  of  the  United  States  which  may  be  employed  by  the 
Government  of  the  said  States  in  the  carrying  of  their  public  mails 
across  the  Pacific  Ocean,  or  from  one  port  in  that  ocean  to  another, 
shall  have  free  access  to  the  ports  of  the  Sandwich  Islands,  with  the 
privilege  of  stopping  therein  to  refit,  to  refresh,  to  land  passengers  and 
their  baggage,  and  for  the  transaction  of  any  business  pertaining  to  the 
public  mail  service  of  the  United  States,  and  shall  be  subject  in  such 
ports  to  no  duties  of  tonnage,  harbor,  light-houses,  quarantine,  or  other 
similar  duties  of  whatever  nature  or  under  whatever  denomination.' 

"It  is  true  that  the  exclusive  grant  of  the  Hawaiian  Government  is 
made  directly  to  the  Oceanic  Company,  an  American  corporation,  but 
its  transfer  by  Mr.  Spreckles  to  the  English  company,  and  the  refusal 
of  the  Hawaiian  consuls,  under  instructions  from  that  Government,  to 
grant  the  required  certificates  to  a  particular  class  of  passengers  unless 
they  take  passage  on  the  ships  of  the  line,  enjoying  the  exclusive  priv- 
ilege, accomplished  by  indirection  precisely  what  the  treaty  forbids 
being  done  directly,  i.  e.,  the  establishing  of  the  discriminating  policy 
in  navigation  and  commerce  against  steam  vessels  of  the  United  States 
434 


CHAP.  III.]  HAWAII.  [§  62. 

plying  between  the  eastern  and  western  shores  of  the  Pacific  Ocean  and 
carrying?  its  mails.  The  right  of  the  Hawaiian  Government  to  admit  to 
or  to  exclude  from  its  dominions  immigrants  of  any  nationality  or  race 
is  not  for  a  moment  questioned  by  this,  but  that  the  exclusive  privilege 
of  carrying  immigrants  who  are  admitted  to  Hawaii  should  be  accorded 
to  any  one  company  owning  a  particular  line  of  ships,  whether  Ameri- 
can, Hawaiian,  or  foreign  to  both  countries,  is  believed  to  be  in  itself 
unjust,  and,  as  I  have  already  observed,  wholly  inconsistent  with  the 
due  maintenance  of  the  treaty  of  1849.  The  Pacific  Mail  Steamship 
Company  have  no  right  to  demand  an  exclusive  privilege  in  such  car- 
rying trade,  but  it  may,  with  manifest  propriety,  under  the  terms  of  the 
treaty,  insist  that  no  discriminating  measures  against  its  vessels  shall 
be  maintained  or  permitted  by  the  Hawaiian  Government. 

"  You  will  present  the  subject  to  that  Government  in  the  light  of 
these  suggestions,  and  it  is  not  doubted  but  that  the  enlightened  sense 
of  justice  of  His  Hawaiian  Majesty  will  at  once  enable  him  to  see  the 
possible  injustice  involved  in  the  proposed  arrangement,  and  that  he 
will  inaugurate  the  necessary  measures  to  avert  its  being  carried  out." 

Mr.   Frelinghuysen,  Sec.  of  State,  to  Mr.  Daggett,  Nov.  15,  1883.     MSS.  Inst., 
Hawaii ;  For.  Rel.,  1883. 

"  I  have  had  the  honor  of  receiving  your  note  of  the  18th  of  October 
last,  inclosing  a  signed  protest  on  the  part  of  the  Hawaiian  Government 
against  the  annexation  of  archipelagoes  and  islands  of  Polynesia  by 
foreign  powers,  and  especially  by  Great  Britain,  in  behalf  of  which  pro- 
test the  sympathies  of  this  Government  are  asked. 

"  It  is  unnecessary  to  assure  you  that  the  sympathies  of  this  Govern- 
ment and  the  people  of  this  country  are  always  in  favor  of  good  self- 
government  by  the  independent  communities  of  the  world. 

"While  we  couldnot,  therefore,  view  with  complacency  any  movement 
tending  to  the  extinction  of  the  national  life  of  the  intimately  connected 
commonwealths  of  the  Northern  Pacific,  the  attitude  of  this  Govern- 
ment towards  the  distant  outlying  groups  of  Polynesia  is  necessarily 
different. 

"  It  is  understood  that  the  agitation  to  which  the  protest  refers  as 
now  existing  in  Australia  contemplates  the  immediate  protection  and 
eventual  annexation  of  the  New  Hebrides,  the  Solomon  Islands,  and  the 
immediately  adjacent  groups  of  the  Australian  colonial  system.  These 
islands  are  geographical^  allied  to  Australasia  rather  than  to  Polynesia. 
At  no  time  have  they  so  asserted  and  maintained  a  separate  national 
life  as  to  entitle  them  to  entrance,  by  treaty  stipulations  and  established 
forms  of  competent  self-government,  into  the  family  of  nations,  as 
Hawaii  and  Samoa  have  done.  Their  material  development  has  been 
largely  due  to  their  intercourse  with  the  great  Australian  system,  near 
which  they  lie,  and  this  Government  would  not  feel  called  upon  to  view 
with  concern  any  further  strengthening  of  such  intercourse  when  neither 

435 


§  63.]  INTERVENTION.  [CHAP.  Ill 

the  sympathies  of  our  people  are  touched  nor  their  direct  political  or 
commercial  relations  with  those  scattered  communities  threatened  by 
the  proposed  change. 

"  The  President,  before  whom  the  protest  has  been  brought,  moved  by 
these  considerations,  does  not  regard  the  matter  as  one  calling  for  the 
interposition  of  the  United  States,  either  to  oppose  or  support  the  sug- 
gested measure." 

Mr.  Frelinghuyeen,  Sec.  of  State,  to  Mr.  Carter,  Dec.  6,  1883.  MSS.  Notes, 
Hawaii. 

The  followinj;  Congressioual  documents  may  be  referred  to  in  this  connection  : 

King  Kalakaua's  visit  to  United  States,  expenses  incurred  by  United  States, 
statement  of.     Dec.  9,  1875.     Senate  Ex.  Doc.  '2,  44th  Cong.,  Ist  sess. 

Reciprocity  treaty.  President's  message.  Dec.  6,  IBTfj.  House  Ex.  Doc.  1,  44th 
Cong.,  Ist  sess. 

Views  and  objections  to  the  bill  to  carry  the  treaty  into  eifect.  Favorable  and 
adverse  reports,  Feb.  24, 1876.  House  Eep.  116,  parts  1  and  2,  44th  Cong., 
1st  sess. 

Proclamation  putting  the  treaty  into  effect.  President's  message.  Dec.  9,  1875. 
House  Ex.  Doc.  1,  44th  Cong.,  2d  sess. 

Termination  of  treaty.  Report  recommending  modifications  in,  instead  of  termi- 
nation of,  existing  treaty.  Jan.  16, 18S3.  House  Eep.  1860,  47th  Cong.,  2nd 
sess.     Jan.  29, 1883.    Part  2,  minority  report. 

Termination  of  treaty.  Favorable  report  and  minority  report.  Feb.  27,  1883. 
Senate  Rep.  1013,  47th  Cong.,  2d  sess.  Adverse  report.  Jan.  24,  1884. 
Senate  Rep.  76,  48th  Cong.  1st  sess.  Jan.  24,  1884.  Part  2,  minority  re- 
port. 

See  also  speeches  of  Mr.  Mitchell  and  of  Mr.  Morrill  on  the  Hawaiian  reciprocity 
treaty  of  1875,  Pamph.,  Dept.  of  State,  and  remarks  of  Messrs.  Allen  and 
Boutwell  on  the  bill  for  the  termination  of  that  treaty,  Pamph.,  Dept.  of 
.     State  ;  and  pamphlet  by  Mr.  Spaldiug  ou  simile  topic,  id. 

(7)  Samoa,  Carolike,  and  other  Pacific  Islands. 

§63 

In  March,  1872,  certain  commercial  arrangements  were  made  b^ 
Manga,  chief  of  Tutuila,  and  Commander  Meade,  of  the  U.  S.  S.  Nar- 
ragansett,  for  the  use  of  the  port  of  Pango-Pango.  According  to  a  sum- 
mary in  the  Nineteenth  Century  for  February,  1886,  "it  was  arranged 
that  Pango-Pango  should  be  given  up  to  the  American  Government,  on 
condition  that  a  friendly  alliance  existed  between  that  island  and  the 
United  States.  Pango-Pango  Harbor  has  thus  passed  forever  from  the 
hands  of  the  British." 

For  the  agreement  of  Feb.  17,  1872,  between  Commander  Meade,  of  the  United 
States  Navy,  and  the  chief  of  the  Island  of  Tutuila,  one  of  the  Samoan 
group,  conferring  on  the  United  States  the  exclusive  privilege  of  establish- 
ing a  naval  station  in  such  island,  see  MSS.  Report  Book. 
As  to  claims  for  spoliations  by  "wrongful  acts  of  the  commercial  agent  of  the 
United  States  exercising  authority,"  at  Apia  in  1855,  see  House  Rep. 
No.  212,  35th  Cong.,  2d  sess. ;  House  Rep.  No.  569,  36th  Cong.,  1st  sess. ;  Sen- 
ate Rep.  Com.  No.  148,  36th  Cong.,  1st  sess. 

436 


CHAP.  III.]  SAMOA   AND    OTHER   PACIFIC    ISLANDS.  [§  63. 

''The  Government  of  the  Samoan  Islands  has  sent  an  envoy,  in  the 
person  of  its  secretary  of  state,  to  invite  the  Government  of  the  United 
States  to  recognize  and  protect  their  independence,  to  establish  com- 
mercial relations  with  their  people,  and  to  assist  them  in  their  steps 
toward  regulated  and  responsible  government.  The  inhabitants  of 
these  islands,  having  made  considerable  progress  in  Christian  civiliza- 
tion and  the  development  of  trade,  are  doubtful  of  their  ability  to  main- 
tain peace  and  independence  without  the  aid  of  some  stronger  power. 
The  subject  is  deemed  worthy  of  respectful  attention,  and  the  claims 
upon  our  assistance  by  this  distant  community  will  be  carefully  con- 
sidered." 

President  Hayes,  First  Annual  Message,  1877. 

"The  treaty  with  the  Samoan  Islands,  having  been  duly  ratified  and 
accepted  on  the  part  of  both  Governmeuts,  is  now  in  operation,  and  a 
survey  and  soundings  of  the  harbor  of  Pango-Pango  have  been  made  by 
a  naval  vessel  of  the  United  States,  with  a  view  of  its  occupation  as  a 
naval  station,  if  found  desirable  to  the  sft-vice." 

President  Hayes,  Second  Annual  Message,  1878. 

"A  naval  vessel  has  been  sent  to  the  Samoan  Islands,  to  make  sur- 
veys and  take  possession  of  the  privileges  ceded  to  the  United  States 
by  Samoa  in  the  harbor  of  Pango-Paugo.  A  coaling-station  is  to  be  estab- 
lished there,  which  will  be  convenient  and  useful  to  United  States  ves- 
sels." 

President  Hayes,  Third  Annual  Message,  1879. 

"  In  Samoa,  the  Government  of  King  Malietoa,  under  the  support  and 
recognition  of  the  consular  representatives  of  the  United  States,  Great 
Britain,  and  Germany,  seems  to  have  given  peace  and  tranquillity  to 
the  islands.  While  it  does  not  appear  desirable  to  adopt  as  a  whole 
the  scheme  of  tripartite  local  government,  which  has  been  proposed,  the 
common  interests  of  the  three  great  treaty  powers  require  harmony  in 
their  relations  to  the  native  frame  of  government,  and  this  may  be  best 
secured  by  a  simple  diplomatic  agreement  between  thoin.  It  would  be 
weir  if  the  consular  jurisdiction  of  our  representative  at  Ai)ia  were 
increased  in  extent  and  importance  so  as  to  guard  American  interests 
in  the  surrounding  and  outlying  islands  of  Oceanica." 

President  Hayes,  Fourth  Annual  Message,  1880. 

"  The  United  States,  the  same  a^  Germany  and  Great  Britain,  does 
not  desire  the  triumph  of  any  particular  party,  but  the  restoration  of 
peace  and  order;  and  this  Government  further  desires  that  peace  and 
order  be  restored  by  the  establishment  of  a  firm,  stable,  independent 
native  Government  that  will  command  the  respect  and  support  of 
natives  and  foreigners.  There  is  nothing  in  any  of  the  instructions  of 
the  Department  to  our  consul  at  Apia  to  warrant  any  one  party  on  the 

437 


§  63.]  INTERVENTION.  [CHAP.  III. 

islands  more  than  another  to  believe  that  this  Government  was  favor- 
able to  their  cause ;  and  the  Department  would  regret  to  have  such  an 
impression  prevail." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  von  Thielmaim,  June  15,  1877.     MSS.  Notes, 
Germ. 

"A  naval  station  having  in  1872  been  established  in  the  harbor  of  the 
Bay  of  Pango-Pango,  under  an  agreement  with  the  great  chief  of  the 
bay,  and  the  attention  of  the  Government  drawn  by  highly  respectable 
commercial  persons  to  the  importance  of  the  growing  trade  and  com- 
merce of  the  United  States  with  the  islands  in  the  South  Pacific  Ocean, 
and  to  the  opportunities  of  increasing  our  commercial  relations  iu  that 
quarter  of  the  globe,  it  was  determined,  as  the  Samoan  or  Navigator 
Islands  lay  in  the  track  of  such  trade,  and  were  reputed  to  abound  in 
good  harbors  and  to  be  very  fertile  and  theirinhabitants  friendly  towards 
this  Government,  to  send  a  special  agent  thither,  for  the  purpose  of 
making  a  thorough  examination  and  report  in  regard  to  all  the  points 
on  which  it  was  desirable  th^t  this  Government  should  be  informed." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Welsh,  May  15,  lS7y.     MSS.  Inst.,  Gr.  Brit. 

As  to  special  power  conferred  by  the  United  States  upon  A.  B.  Steinberger,  special 
agent  to  the  Samoan  Islands,  see  reports  of  Mr.  Fish,  Sec.  of  State,  to  Presi- 
dent Grant,  May  1,  1876  (sent  by  him  to  the  House  of  Representatives). 
MSS.  Report  Book. 
The  following  Congressional  documents  may  be  consulted  iu  this  relation  : 

Report  as  to  the  character  of  the  island,  the  inhabitants,  nature  and  quantity 
of  the  agricultural  and  other  productions,  the  character  of  the  harbors,  uud 
the  form  of  Government,  by  A.  B.  Steinberger.  special  agent  of  the  United 
States.  President's  message.  Apr.  21,  1874.  Senate  Ex.  Doc.  45,  43d 
Cong.,  1st  sess. — Further  report.  President's  message.  May  1,1876.  House 
Ex.  Doc.  161,  44th  Cong.,  first  sess. 

Further  correspondence.  President's  message.  Feb.  24, 1877.  House  Ex.  Doe. 
44,  44th  Cong.,  2d  sess. 

Political  and  commercial  report  of  Gustavns  Goward.  President's  message. 
Mar.  20,  1879.     (Senate  Ex.  Doc.  2,  46th  Cong.,  1st  sess.) 

Steinberger's  bargain  of  Sept.  10, 1874,  with  the  hou.se  of  Godeifroy  &  Son,  of 
Hamburg,  by  which  his  influence  in  the  Samoan  Islands  is  made  over  to 
that  house,  is  given  in  the  Nineteenth  Century  for  Feb.,  1886,  pp.  288, 
289.  The  same  periodical  (p.  305)  gives  the  German  negotiations  with  Sa- 
moa. 

"The  Ealik  group  of  islands  in  the  Marshall  Archipelago"  ''is  un- 
derstood to  be  under  no  foreign  flag  or  protectorate,  and  to  feel  no 
foreign  influence  other  than  that  of  the  resident  consular  officer,  a  Ger- 
man, and  of  the  distant  consular  representatives  at  Samoa  and  Fiji, 
within  the  jurisdiction  of  which  the  Ealik  Islands  seem  to  fall."  Hence 
this  Government,  in  desiring  to  aid  the  native  Government  of  those 
islands  in  the  establishment,  in  connection  with  the  missionaiies,  of 
temperance  restrictions,  can  only  do  so  through  the  agency  of  the 
German  Government. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  White,  Nov.  13, 1880.     MSS.  Inst.,  Germ. 
438 


CHAP.  III.]  SAMOA   AND    OTHER   PACIFIC    ISLANDS.  [§  63. 

"  For  your  information  I  inclose  a  copy  of  an  instruction  recently  sent 
to  our  legation  at  Madrid  in  regard  to  the  mode  of  procedure  by  which 
the  crimes  alleged  to  have  been  committed  by  an  American  citizen  oa 
the  Island  of  Guap,  or  Yap,  might  be  reached  and  punished.  This  in- 
struction (No.  381,  of  August  3,  1885,  to  Mr.  Foster)  abundantly  shows 
that  we  not  only  have  not  the  slightest  purpose  of  asserting  claim  to  the 
Caroline  Islands  in  virtue  of  the  large  American  interests  established 
there,  but  that  we  seek  to  respect  whatever  sovereign  jurisdiction  may  be 
established  as  existing  there,  without  even  indicating  an  opinion  as  to 
questions  of  legitimate  controversy  by  either  Spain  or  Germany." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Pendleton,  Sept.  7,  1885.     MSS.  Inst.,  Germ. 

The  instruction  to  Mr.  Foster,  above  referred  to,  had  to  do  with  the  punishment 
of  an  alleged  American  trader  for  crimes  against  natives  in  his  employ  on 
the  Island  of  Guap.  After  alluding  to  the  difficulties  in  the  way  of  reach- 
ing him,  it  was  suggested  that  if,  as  was  reported,  orders  had  been  issued 
at  Madrid  to  establish  the  jurisdiction  of  Spain  over  the  Caroline  Islands, 
of  which  Guap  was  one,  the  Spanish  authorities,  if  it  be  determined  they 
have  jurisdiction,  could  cause  him  to  be  arrested  and  brought  to  the  nearest 
court  competent  to  try  the  case. 

"  Your  communication  of  the  17th  instant,  referring  to  this  Depart- 
ment a  letter  addressed  to  you  by  Mr.  A.  Crawford,  of  San  Francisco, 
in  relation  to  the  alleged  action  of  Germany  in  claiming  the  sovereignty 
of  the  islands  of  the  Samoan,  Gilbert,  and  Marshall  groups,  has  been  re- 
ceived. In  reply,  I  have  the  honor  to  inform  you  that  we  have  no  treaty 
relations  with  the  Gilbert  and  Marshall  Islands,  or  any  knowledge  of 
the  intention  of  Germany  with  respect  thereto,  except  the  reports  which 
reach  us,  with  more  or  less  authenticity,  that  Great  Britain  and  Ger- 
many have  agreed  upon  lines  of  division  in  the  Pacific  Ocean,  by  which 
determinate  areas  will  be  open  to  the  exclusive  settlement  and  control 
of  the  respective  Governments.  The  case  is  difterent  in  Samoa,  with 
which  country  we  have  established  treaty  relations.  The  German  Gov- 
ernment has  repeatedly  disclaimed  any  intention  to  interfere  with  these 
treaty  relations  in  any  way.  The  recently  reported  occurrences  in 
Samoa  are  not  as  yet  fully  understood,  and  further  knowledge  is  awaited 
before  forming  a  definite  judgment.  As  to  the  outlying  unanached 
groups  of  islands,  dependent  upon  no  recognized  sovereignty,  and  set- 
tled sporadically  by  representatives  of  many  nationalities  whose  tenure 
depends  on  i)rior  occupancy  of  inhabited  territory  or  on  a  good  under- 
standing with  the  natives  of  the  inhabited  islands,  we  conceive  that  the 
rights  of  American  settlers  therein  should  rest  on  the  same  footing  as 
others.  We  claim  no  exclusive  jurisdiction  in  their  behalf,  and  are  not 
called  upon  to  admit  on  the  part  of  any  other  nationality  rights  which 
might  operate  to  oust  our  citizens  from  rights  which  they  may  be  found 
to  share  equally  with  others.  In  cases  of  actual  annexation  of  such 
islands  by  any  foreign  power,  we  should  expect  that  our  citizens  peace- 

439 


§  63.]  INTERVENTION.  [CHAP.  III. 

ably  established  there  would  be  treated  on  a  basis  of  equality  with  the 
citizens  or  subjects  of  such  power.  These  views  have  been  communi- 
cated to  our  ministers  at  London  and  Berlin  for  their  guidance. 

Mr.  Bayard,  Sec.  of  State,  to  Mr,  Morrow,  Feb.  26,  1886.     MSS.  Dom.  Let. 

"  My  recent  instructions  to  you  show  the  deep  concern  which  this 
Government  feels  in  the  reported  operations  of  Germany  in  the  Samoan 
Islands,  with  which  we  have  treaty  relations.  We  have  no  treaty  rela- 
tions with  the  Marshall  or  Gilbert  groups.  They  are  understood  to  be- 
long to  the  large  category  of  hitherto  unclaimed  islands  which  have  been 
under  no  asserted  administration,  and  where  the  traders  of  various  na- 
tionalities have  obtained  lodgment  through  good  relations  with  the 
natives.  Of  the  Gilbert  Islands  we  have  no  precise  information.  Mr. 
von  Alveusleben  recently  stated  in  conversation  that  the  German  claim 
to  the  Caroline  Islands  having  been  decided  adversely,  Germany  would, 
instead,  take  possession  of  the  Marshall  group.  It  is  understood,  but 
informally  so,  that  an  arrangement  exists  between  Great  Britain  and 
Germany  whereby  the  two  powers  will  confine  their  respective  insular 
annexations  in  the  Pacific  Ocean  within  defined  areas  or  zones,  and  that 
under  this  arrangement  the  Marshall  Islands  fall  within  the  zone  where 
Germany  can  operate  without  coming  into  collision  with  Great  Britain. 

"  It  is  not  easy  to  see  how  either  Great  Britain  or  Germany  can  assert 
the  right  to  control  and  to  divide  between  them  insular  i)ossessions 
which  have  hitherto  been  free  to  the  trade  of  all  flags,  and  which  owe 
the  civilizing  rudiments  of  social  organization  they  possess  to  the  set- 
tlement of  pioneers  of  other  nationalities  than  British  or  German.  If 
colonial  acquisition  were  an  announced  policy  of  the  United  States,  it 
is  clear  that  this  country  would  have  an  equal  right  with  Great  Britain 
or  Germany  to  assert  a  claim  of  possession  in  respect  of  islands  settled 
by  American  citizens,  either  alone  or  on  a  footing  of  equality  with  Brit- 
ish and  German  settlers. 

"There  are  islands  in  the  Pacific  Ocean  known  to  be  wholly  in  the 
undisturbed  possession  of  American  citizens  as  peaceable  settlers,  and 
there  are  many  others  where  American  citizens  have  established  them- 
selves in  common  with  other  foreigners.  We,  of  course,  claim  no  ex- 
clusive jurisdictional  right  by  reason  of  such  occupancy,  and  are  not 
called  upon  to  admit  it  iu  the  case  of  like  occupancy  by  others. 

"What  we  think  we  have  a  right  to  expect,  and  what  we  are  confi- 
dent will  be  cheerfully  extended  as  a  recognized  right,  is  that  interests 
found  to  have  been  created  in  favor  of  peaceful  American  settlers  in 
those  distant  regions  shall  not  be  disturbed  by  the  assertion  of  exclusive 
claims  of  territorial  jurisdiction  on  the  part  of  any  power  which  has 
never  put  forth  any  show  of  administration  therein ;  that  their  trade 
and  intercourse  shall  not  iu  any  way  be  hampered  or  taxed  otherwise 
than  as  are  the  trade  and  intercourse  of  the  citizens  or  subjects  of  the 
440 


CHAP.  III.]  SAMOA   AND    OTHER    PACIFIC    ISLANDS.  [§  63i 

power  asserting  such  exclusive  jurisdiction,  and,  in  short,  that  the 
equality  of  their  tenancy  jointly  with  others,  or  the  validity  of  their 
tenancy  where  they  may  be  the  sole  occupants,  shall'  be  admitted  ac- 
cording to  the  established  principles  of  equity  and  justice." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Pendleton,  Feb.  27,  1886.     MSS.  In.st.,  Germ. 

"  Nowhere  were  justice  and  the  rights  of  the  native  inliabitants  more 
cynically  regarded  than  in  Samoa  by  the  great  German  t;ading  firms. 
The  people  of  that  group  belong  to  the  finest  of  the  Polynesian  races. 
They  are  all  nominally  Christians,  and  have  never  deserved  the  title  of 
< savage'  except  in  its  acceptation  of  'not  civilized.'  Unliapi)ily  tribal 
animosities  and  the  machinations  of  interested  and  unscrupulous  white 
men  led  to  a  series  of  wars.  The  combatanirs  were  anxious  to  procure 
fire-arms,  and  the  traders  declined  to  sell  them  except  for  land.  The 
result  was  that  between  1869  and  1872  not  less  than  100,000  acres  passed 
into  German  ownership  at  a  virtual  cost  of  a  few  pence  per  acre.  For 
much,  not  even  this  consideration  was  given.  The  ignorant  natives 
were  deluded  into  signing  documents  which  they  could  not,  in  the  least, 
understand,  and  which  were  held  to  give  the  white  occupiers  a  secure 
title.  At  present  the  German  land  claims  in  Samoa  comprise  232,000 
acres.  British  subjects  claim  not  less  than  357,000.  There  is,  however, 
this  important  difference  between  the  positions  of  the  German  and  the 
British  claimants ;  the  former  have  so  far  made  their  claims  effective 
that  they  occupy  and  cultivate  just  as  much  of  the  soil  as  they  can 
work,  whilst  the  latter's  exist  only  on  paper  and  are  not  insisted  on  by 
our  Government.  *  *  *  The  preservation  of  the  native  races,  whose 
diminution  is  hastened  by  the  labor  trade,  is  of  vital  importance  to  the 
white  settlers  in  Oceania.  England  has  attempted  to  i)rotect  the  isl- 
anders, but  not  verj^  successfully.  Certain  alterations  in  the  law  have 
been  recommended,  but  it  is  doubtful  if  these,  should  they  be  made, 
will  effect  much.  We  concur  with  Baron  Hlibner  in  thinking  that  the 
only  remedy  is  to  be  looked  for  in  some  international  agreement,  '  the 
terms  of  which  should  apply  to  all  mankind  living  or  moving  in  the 
archipelagoes  or  regions  of  the  Western  Pacific'  The  i)recedent  of 
Apia  in  Samoa  is  encouraging.  That  town  and  the  immediate  neigh- 
borhood are  governed  by  a  municipal  board  under  the  joint  supervision 
of  the  consuls  of  Great  Britain,  Germany,  and  the  United  States.  It 
still  forms  part  of  the  dominions  of  the  King  of  Samoa,  but  the  admin- 
istration is  in  '  the  hands  of  the  municipality  and  the  consuls.' " 

Edinburgh  Eev.,  (July,  1866,)  87,92. 

As  to  title  to  Christmas  Island,  situated  in  the  Pacific  Ocean,  see  Mr.  Evarts, 
Sec.  of  State,  to  Sir  E.  Thornton,  Apr.  1,  1879.     MSS.  Notes,  Gr.  Brit. 

As  to  Midway  Islands,  see  Mr.  Welles's  report,  July  18,  1808;  Senate  Ex. 
Doc.  No.  79,  40th  Cong.,  2d  sess. ;  Senate  Rep.  Com.  No.  194,  40th  Cong., 
3d  sess. 

As  to  American  Missions  in  the  Caroline  Islands,  soo  Mr.  Bayard,  Sec.  of  .State, 
to  Mr.  Pendleton,  Sept.  7,  1885.     MSS.  Inst.     Germ.    Supra,  $  54. 

As  to  sovereignty  of  such  islands,  see  instructions  of  same  date,  of  same  to 
same. 

As  to  seizure  by  British  Goverumcnt  of  Tigre  Island  in  the  Gulf  of  Fonseca,  Cen- 
tral America,  see  message  of  President  Fillmore,  of  July  22,  1850,  with  ac- 
companying papers,  House  Ex.  Doc.  No.  75,  31st  Cong.,  Ist  sess. 

441 


§  64]  INTERVENTION.  [CHAP.  III. 

(8)  COREA. 

§  64. 

The  independence  of  Corea  of  China  is  to  be  regarded  by  the  United 
States  as  now  established. 

Mr.   Frelinghuysen,  Sec.  of  State,  to  Mr.  Young,  Aug.  4,  1882.     MSS.  lust., 
China.     See  also  Mr.  Davis  lo  Mr.  Young,  Jan.  22,  1883.     Ibid. 

"The  existence  of  international  relations  between  the  two  countries 
(the  United  States  and  Corea),  as  equal  contracting  parties,  is  to  be 
viewed  simply  as  an  accepted  fact." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Young,  June  9,  1883.     Ihid. 

"  The  United  States,  as  you  are  aware,  were  the  first  western  power 
to  conclude  a  treaty  with  Corea.  By  reason  of  this  fact,  and  perhaps 
to  give  greater  emphasis  to  the  friendship  so  happily  initiated,  the 
Corean  Government  sought  the  introduction  into  the  treaty  of  the  pro- 
vision on  which  this  ap])licatiou  rests.  It  was  admitted  by  us  as  evi- 
dence of  our  impartial  desire  to  see  the  independence  and  peace  of  Corea 
well  established.  The  second  clause  of  Article  I  of  the  treaty  of  May 
22, 1882,  between  the  United  States  and  Corea,  reads  thus  : 

"•If  other  powers  deal  unjustly  or  oppressively  with  either  Govern- 
ment, the  other  will  exert  their  good  offices,  on  being  informed  of  the 
case,  to  bring  about  an  amicable  arrangement,  thus  showing  their 
friendly  feelings.' 

"  Except  that  the  provision  is  made  reciprocal,  it  follows  the  phrase- 
ology of  Article  I  of  our  treaty  of  1858  with  China. 

"  This  Government  could  not,  of  course,  construe  the  engagement 
thus  entered  into  as  empowering  or  requiring  us  to  decide  and  main- 
tain that  the  acts  in  respect  to  which  good  offices  are  desired  are,  in 
fact,  unjust  and  ojpjjressive.  Such  a  construction  would  naturally  render 
nugatory  any  attempt  to  derive  good  results  from  the  engagement." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Phelps,  Aug.  19,  1885.     MSS.  Inst.,  Gr.  Brit. 
See  a  series  of  interesting  dispatches  from  Mr.  Foulk,  charge  d'affaires  a(Z  iri' 
terim,  at  Corea,  in  For.  Rel.,  1885. 

(9)  Falkland  Islands. 
§65. 

The  Government  of  the  United  States  will  protect  citizens  of  the 
United  States  having  fishing  rights  on  the  Falkland  Islands  from  the 
interference  of  parties  claiming  under  Buenos  Ayres. 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Baylies,  Jan.  26,  1832.     MSS.  Inst.,  Am. 
States.     Same  to  same,  Apr.  3,  1«32.     Ibid. 

U2 


CHAP.  III.]  FALKLAND    ISLANDS.  [§  65. 

Vessels  of  the  United  States  visiting  the  Falkland  Islands  have  in 
them  "customary  privileges,"  which  ought  not  to  be  abridged  by  arbi- 
trary decrees  of  the  British  Government. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchanan,  Sept.  27,  1854.     MSS.  Inst.,  Gr.  Brit. 
The  papers  relative  to  the  seizure  by  the  British  authorities  at  the  Falkland 

Islands,  in  1854,  of  the  ship  Hudson  and  Bchooner  Washington,  are  given 

in  the  report  of  Mr.  Fish,  Sec.  of  State,  Jan.  16,  1872,  Senate  Ex.  Doc.  No. 

19,  42d  Cong.,  2d  sess. 
The  correspondence  with  Buenos  Ayres  with  respect  to  the  Falkland  Islands  will 

be  found  in  the  Br.  and  For.  St.  Pap.  for  18:52-':},  vol.  20,  312, 

"The  Argentine  Government  has  revived  the  long  dormant  question 
of  the  Falkland  Islands,  by  claiming  from  the  United  States  indemnity  for 
their  loss,  attributed  to  the  action  of  the  commander  of  the  sloop-of-war 
Lexington  in  breaking  up  a  piratical  colony  on  those  islands  in  1831, 
and  their  subsequent  occupation  by  Great  Britain.  In  view  of  the 
ample  justification  for  the  act  of  the  Lexington,  and  the  derelict  condi- 
tion of  the  islands  before  and  after  their  alleged  occupation  by  Argen- 
tine colonists,  this  Government  considers  the  claim  as  wholly  ground- 
less." 

President  Cleveland,  First  Annual  Message,  1885. 

"The  right  of  the  Argentine  Government  to  jurisdiction  over  it  (the 
territory  of  the  Falkland  Islands),  being  contested  by  another  power 
(Great  Britain),  antl  upon  grounds  of  claim  long  antecedent  to  the  acts 
of  Captain  Duncan  which  General  Alvear  details,  it  is  conceived  that 
the  United  States  ought  not,  until  the  controversy  upon  the  subject 
between  those  two  Governments  shall  be  settled,  to  give  a  final  answer 
to  General  Alvears  note,  involving,  as  that  answer  must,  under  exist- 
ing circumstances,  :i  departure  from  that  which  has  hitherto  been  con- 
sidered as  the  cardinal  policy  of  this  Government." 

Mr,  Webster,  Sec,  of  State,  to  General  Alvear,  Dec.  4,1841  ;  quoted   by  Mr. 
Bayard,  Sec.  of  Stnte,  to  Mr.  Quesada,  Mar.  18, 1886.    MSS.  Notes,  Arg.  Eep. 

"This  Government  is  not  a  party  to  the  controversy  between  the 
Argentine  Bepublic  and  Groat  Britain;  and  it  is  for  this  reason  that  it 
has  delayed,  with  the  tacit  <;onsent  of  the  former,  a  finai  answer  to  its 
demands.  For  it  is  conceived  that  the  question  of  the  liability  of  the 
United  States  to  the  Argentine  Republic  for  the  acts  of  Cai)tain  Dun- 
can, in  1831,  is  so  closely  related  to  the  question  of  sovereignty  over 
the  Falkland  Islands,  that  the  decision  of  the  former  question  would 
inevitably  be  interpreted  as  an  expression  of  opinion  on  the  merits  of 
the  latter.  Such  an  expression  it  is  the  desire  of  this  Government  to 
avoid,  so  far  as  an  adequate  reference  to  the  points  of  argument  pre- 
sented in  the  notes  recently  addressed  to  this  Department  on  the  behalf 
of  your  Government  will  permit.     *     *     * 

"As  the  resumption  of  actual  occupation  of  the  Falkland  Islands  by 
Great  Britain  in  1833  took  place  under  a  claim  of  title  which  had  been 

443 


§  G6.]  INTERVENTION.  [CHAP.  III. 

previously  asserted  and  maintained  by  that  Government,  it  is  not  seen 
that  the  Monroe  doctrine,  which  has  been  invoked  on  the  part  of  the 
Argentiue  Kepublic,  has  any  application  to  the  case.  By  tbe  terms  in 
which  that  principle  of  international  conduct  was  announced,  it  was 
expressly  excluded  from  retroactive  operation. 

"If  the  circumstances  had  been  different,  and  the  acts  of  the  British 
Government  had  been  in  violation  of  that  doctrine,  this  Government 
could  never  regard  its  failure  to  assert  it  as  creating  any  liability  to 
another  power  for  injuries  it  may  have  sustained  in  consequence  of  the 
omission.     *     *     * 

"But  it  is  believed  that,  even  if  it  could  be  shown  that  the  Argentine 
Eepublic  possesses  the  rightful  title  to  the  sovereignty  of  the  Falkland 
Islands,  there  would  not  be  wanting  ample  grounds  upon  which  the 
conduct  of  Captain  Duncan  in  1831  could  be  defended.     *     *     * 

"On  the  whole,  it  is  not  seen  that  the  United  States  committed  any 
invasion  of  the  just  rights  of  the  Government  of  Buenos  Ayres  in  put- 
ting an  end  in  1831  to  Vernet's  lawless  aggressions  upon  the  persons 
and  property  of  our  citizens." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Quesada,  Mar.  18,  1886.     MSS.  Notes,  Arg. 
Eep. 

The  President,  in  a  message  to  Congress,  and  in  the  correspondence 
carried  on  with  the  Government  of  Buenos  Ayres,  having  denied  the 
jurisdiction  of  that  country  over  the  Falkland  Islands,  the  courts  must 
take  the  facts  to  be  so. 

Williams  t\  Suffolk  iDsurance  Company,  13  Pet.,  415. 

Where  an  officer  of  the  Navy,  without  instructions  from  his  Govern- 
ment, seized  property  in  the  Falkland  Islands,  claimed  by  citizens  of 
the  United  States,  which,  it  was  alleged,  had  been  piratically  taken  by 
a  person  pretending  to  be  governor  of  the  islands,  it  was  held,  that  such 
officer  had  no  right,  without  express  direction  from  his  Government, 
to  enter  the  territoriality  of  a  country  at  peace  with  the  United  States 
and  seize  property  found  there  claimed  by  citizens  of  the  United  States. 
Application  for  redress  should  have  been  made  to  the  judicial  tribu- 
nals of  the  country. 

Davison  v.  Seal-skins,  2  Paiue,  324. 

(10)  Liberia. 

§  66. 

''The  United  States  are  not  averse  to  having  the  great  powers  know 
that  they  publicly  recognize  the  peculiar  relations  between  them  and 
Liberia,  and  that  they  are  prepared  to  take  every  proper  step  to  main- 
tain them.  To  this  end,  it  is  not  inexpedient  that  you,  and  Mr.  Lowell 
also  on  his  return  to  his  post  from  his  present  leave,  should  evince  a 
lively  interest  in  the  movements  of  both  Great  Britain  and  France  in 
444 


CH4P.  III.J  LIBERIA.  [§  66. 

the  neighborhood  of  Liberia,  without,  however,  showing  any  undue 
anxiety  or  offensive  curiosity  in  the  matter." 

Mr.  Evarts,  Sec.  of  8tate,  to  Mr.  Hoppiu,  Apr.  21,  1880.     MSS.  Inst.,  Gr.  Brit. 

Aa  to  suggested  French  "protectorate  of  Liberia,"  see  Mr.  Evarts,  Sec.  of  State, 

to  Mr.  Noyes,  Apr.  21,  1880,  and  preceding  instructions.    MSS.  Inst.,  France. 

"  On  the  14th  instant,  in  a  conference  with  me,  the  minister  of  Ger- 
many at  this  capital  stated  that  in  October  last  the  German  steamer 
Carlos,  Capt.  P.  C.  Nickelsen,  with  a  cargo  from  Hamburg  for  Lagos, 
via  Sasstown,  fell  into  distress  on  the  coast  of  Liberia  ;  that  the  natives 
of  the  coast  of  the  "  Kronbah  "  tribe  took  advantage  of  the  helpless 
condition  of  the  vessel  to  plunder  her  of  the  greater  part  of  her  cargo, 
beside^robbing  and  maltreating  her  crew,  who  sought  to  escape  in  the 
vessel's  life-boats;  and  that  the  Liberian  Government  showed  the  sin- 
cerest  wish  to  punish  such  i^roceediugs,  but  declared  itself  unable  to 
exert  authority  to  that  end  over  the  lawless  Kronbahs.  Under  these 
circumstances  Mr.  Yon  Schlozer  said  that  the  German  Government  had 
ordered  the  Victoria  of  the  imperial  navy  to  proceed  to  Liberia  and  there 
assist  the  Government  of  that  Republic  in  the  pursuit  and  punishment 
of  the  offenders,  as  a  step  in  the  general  interest  of  all  commercial  na- 
tions. He  at  the  same  time  asked  that  you  might  be  informed  of  the 
occurrence,  and  of  the  purpose  of  his  Government  in  the  premises. 

"  It  is  not  understood  that  the  coast-dwellers  who  committed  this 
injury  on  a  peaceable  foreign  vessel  and  her  crew  are  unsubdued  rebels 
to  the  Liberian  Government,  or  pirates  in  the  common  international 
acceptation  of  the  term  ;  but  it  is  inferred  that  they  are  simply  lawless 
wreckers,  outside  of  the  prompt  and  efficacious  control  of  the  central 
Government.  In  this  view,  and  to  the  end  of  securing  foreign  life  and 
property  from  inhos])ltable  attacks  on  the  coast  in  question,  it  is  pre- 
sumed that  the  Liberian  Government  would  gladly  avail  itself  of  any 
proper  and  friendly  aid  from  without  in  making  its  own  laws  and  power 
felt  within  its  own  jurisdiction. 

"  Should  the  Liberian  minister  of  state  consult  with  you  on  this  point 
in  view  of  the  attitude  of  advisory  friendliness  which  this  Government 
has  constantly  maintained  toward  that  of  Liberia,  you  are  at  liberty  to 
express  to  him  the  view  of  the  matter  entertained  here,  adding  that  had 
the  case  affected  an  American  vessel  and  crew,  this  Government  would 
not  have  failed  to  consider  in  a  proper  spirit  any  request  made  to  it  by 
that  of  Liberia  for  aid  such  as  Germany  is  now  prepared  to  render. 

"  It  is  not,  however,  needful  for  you  to  make  any  such  statement  in 
advance  of  the  subject  being  brought  to  your  attention." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Smyth,  Feb.  28,  1881.      MSS.  Inst.,  Liberia; 
For.  Rel.,188L 

The  treaty  of  the  United  States  with  Liberia  does  not  authorize  or 
require  -the  United  States  to  interfere  with  their  naval  forces  to  preserve 
order  or  to  compel  obedience  to  law  in  Liberia. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Smyth,  July  12,  1879.    MSS.  Inst.,  Liberia. 

445 


§67.]  INTERVENTION.  [CHAP;  ill. 

Nor  should  the  United  States  minister  at  Liberia  interfere  with  the 
Government  thereof  by  obtruding  political  advice. 

Same  to  same,  Jan.  7,  1880.  But  see  Mr.  Blaine,  Sec.  of  State,  to  Mr.  Smyth, 
June  21,  \HS\,ibid. 

Liberia,  although  not  a  colony  of  the  United  States,  began  its  inde- 
pendent career  as  an  offt^hoot  of  this  country,  which  bears  to  it  a  quasi 
parental  relationship  which  authorizes  the  United  States  to  interpose 
its  good  offices  in  any  contest  between  Liberia  and  a  foreign  state,  and 
a  refusal  to  give  the  United  States  an  opportunity  to  be  heard  for  this 
purpose  would  make  "  an  unfavorable  impression  in  the  minds  of  the 
Government  and  the  people  of  the  United  States." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Roustan,  Aug.  22,  1884.     MSS,  Notes, 

France. 
Report  adverse  to  providing  means  to  make  survey  for  a  railroad  in  Liberia  was 

made  Mar.  .5,  1878.    House  Rep.  349,  45th  Cong.,  2d  sess. 
Memorial  asking  that  a  survey  be  made  for  a  railroad  in  Liberia.     Feb.  12, 

1879.     Senate  Mis.  Doc.  67,  45th  Cong.,  :M  sess. 
As  to  boundaries  of  Liberia,  see  Mr.  Davis,  Asst.  Sec.  of  State,  to  Mr.  Lowell, 

Sept.   \h,  1882;    Mr.  Frelinghuysen,  Sec.  of  State,  to   Mr.  Lowell,  Apr.  9, 

1883,  Aug.  19,  1884;  MSS.  Inst.,  Gr.  Brit.  ;  Mr.  Frelinghuysen,  Sec.  of  State, 

to  Mr.  Smyth,  Dec.  21,  1882,  Apr.  8,  1883  and  June  19,  1883.     MSS.  Inst., 

Liberia. 
Mr.  Gurley's  report  of  Feb.  15,  1850,  on  the  then  condition  of  Liberia  is  given 

in  Senate  Ex.  Doc.  No.  75,  31st  Cong.,  Ist  sess. 

(11)  China. 
§  67. 

For  consular  jurisdiction  in  China,  see  infra,  $  125 ;  as  to  treaties  with  China, 
infra,  ^144. 

President  Van  Buren's  message  of  Feb.  25,  1840,  introducing  an  elaborate  report 
of  the  Secretary  of  State  on  the  state  of  American  trade  with  China,  is  given 
in  House  Ex.  Doc.  No.  119,  20th  Cong.,  1st  sess.  See  also  House  Doc,  No. 
170,  same  Congress. 

President  Tyler's  message  of  Dec.  30,  1842,  in  relation  to  China  and  the  Sand- 
wich Islands,  was  written  by  Mr.  Webster,  2  Curtis'  Life  of  "Webster, 
176. 

"You  will  state,  in  the  fullest  manner,  the  acknowledgment  of  the 
Government  that  the  commercial  regulations  of  the  Empire,  having 
become  fairly  and  fully  known,  ought  to  be  respected  by  all  ships  and 
all  persons  visiting  its  ports ;  and  if  citizens  of  the  United  States, 
under  these  circumstances,  are  found  violating  well  known  laws  of  trade, 
their  Government  will  not  interfere  to  protect  them  from  the  conse- 
quences of  their  own  illegal  conduct.  You  will,  at  the  same  time, 
assert  and  maintain,  on  all  occasions,  the  equality  and  independence  of 
your  own  country.  The  Chinese  are  apt  to  speak  of  persons  coming 
into  the  Empire  from  other  nations  as  tribute  bearers  to  the  Emperor. 
446 


CHAP.  III.]  CHINA.  [§  67. 

This  idea  has  been  fostered  perhaps  by  the  costly  parade  embassies  of 
Eugland.  All  ideas  of  this  kiud,  respecting  your  mission,  must,  should 
they  arise,  be  immediately  met  by  a  declaration,  not  made  ostenta- 
tiously, or  in  a  manner  reproachful  towards  others,  that  you  are  no 
tribute-bearer;  that  your  Government  pays  tribute  to  none  and  ex- 
pects tribute  from  none;  and  that  even  as  to  presents,  your  Government 
neither  makes  nor  accepts  presents.        #        *        # 

"You  will  say  that  the  Government  of  the  United  States  is  always 
controlled  by  a  sense  of  religion  and  of  honor ;  that  nations  difler  in 
their  religious  opinions  and  observances  ;  that  you  cannot  do  anything 
which  the  religion  of  3  our  own  country,  or  the  sentiments  of  honor, 
forbid  ;  that  you  have  the  most  profound  respect  for  His  Majesty  the 
Emperor;  that  you  are  ready  to  make  to  him  all  manifestations  of  hom- 
age which  are  consistent  with  your  own  sense ;  and  that  you  are  sure 
His  Majesty  is  too  just  to  desire  you  to  violate  your  own  duty;  that 
you  should  deem  yourself  quite  unworthy  to  appear  before  His  Majesty 
as  peace-bearer  from  a  great  and  powerful  nation,  if  you  should  do 
anything  against  religion  or  against  honor,  as  understood  by  the  Gov- 
ernment and  people  in  the  country  you  came  from.  Taking  care  thus 
in  no  way  to  allow  the  Government  or  people  of  China  to  consider  you 
as  tribute-bearer  from  your  Government,  or  as  acknowledging  its  infe- 
riority, in  any  respect,  to  that  of  Chiua,  or  any  other  nation,  you  will 
bear  in  mind,  at  the  same  time,  what  is  due  to  your  own  personal  dig- 
nity and  the  character  which  you  bear.  You  will  represent  to  the 
Chinese  authorities,  nevertheless,  that  you  are  directed  to  i>ay  to  His 
Majesty  the  Emperor  the  same  marks  of  respect  and  homage  as  are 
paid  by  your  Government  to  His  Majesty  the  Emperor  of  Russia,  or 
any  other  of  the  great  powers  of  the  world." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Gushing,  May  8,  1843,     MSS.  Inst.,  China. 

The  participation,  by  a  consul  of  the  United  States  in  China,  in  the 
opium  trade,  after  notice  forbidding  such  participation,  is  ground  for  his 
dismissal. 

Mr.  Legar^,  Sec.  of  State,  to  Mr.  Cashing,  June  12,  1843.     MSS.  Inst.,  China. 

"  I  entered  China  with  the  formed  general  conviction  that  the  United 
States  ought  not  to  concede  to  any  foreign  state,  under  any  circum- 
stances, jurisdiction  over  the  life  and  liberty  of  a  citizen  of  the  United 
States,  unless  that  foreign  state  be  of  our  own  family  of  nations — in  a 
\vord,  a  Christian  state.  In  China  I  found  that  Great  Britain  had  stipu- 
lated for  the  absolute  exemption  of  her  subjects  from  the  jurisdiction  of 
the  Empire;  while  the  Portuguese  attain  the  same  object  through  their 
own  local  jurisdiction  at  Macao.  This  exemption  in  behalf  of  citizens 
of  the  United  States  is  agreed  to  in  terms  by  the  letter  of  the  treaty  of 
Wang-Hiya.    By  that  treaty  the  laws  of  the  Union  follow  its  citizens, 

447 


§  67.]  INTERVENTION.  [CHAP.  III. 

and  its  banner  protects  them,  even  within  the  domain  of  the  Chinese 
Empire." 

Mr.  Cuebiuj^  to  Mr.  Calhoun,  Sept.  29,  1844.     MSS.  Despatches  China.     Cited  in 

Lawrence's  Wheaton  (ed.  18015),  '22H. 
As  to  consular  jurisdiction  in  Cliiua,  see  infra,  §  125. 

In  cases  of  aggravated  crimes  by  citizens  of  the  United  States  in 
Chiua  after  the  treaty  giving- jurisdiction  of  such  cases  to  United  States 
consuls,  but  before  Cougressional  legislation,  the  minister  of  the  United 
States  at  China  was  iustructed  to  send  the  criminals  inculpated  to  the 
United  States  for  trial. 

Mr.  Buchanan,  Sec.  of  State,  to   Mr.  A.  H.  Everett,  Apr.  15,  1845.     MSS.  Inst., 
Chiua. 

When  an  attack  is  threatened  on  a  consulate  or  diplomatic  agency  in 
China,  it  is  the  duty  of  the  officers  in  charge  to  give  notice  to  the  local 
authorities,  and,  in  failure  of  adequate  aid,  such  officers  may  take  their 
defense  in  their  own  hands.  The  Chinese  Government  will  afterwards 
be  held  liable  for  any  losses  occurring  from  its  neglect  to  give  efficient  aid. 
Mr.  Buchanan,  Sec.  of  State,  to  Mr.  A.  H.  Everett,  Jan.  28,  1847.     MSS.  Inst., 

China. 
The  message  of  President  Pierce  of  July  19, 1854,  containing  the  correspondence 
between  the  Department  of  State  and  the  late  commissioner  to  China,  Mr. 
Humphrey  Marshall,  is  contained  in  House  Ex.  Doc.  No.  123,  33d  Cong., 
Ist  sess. 

"It  is  difficult  to  lay  down  any  precise  rule  for  regulating  the  trade 
of  our  citizens  with  the  hostile  sections  of  the  people  of  China.  While 
they  should  not  traffic  in  the  plunder  that  one  party  may  have  seized 
from  the  other,  yet  they  ought  not  to  be  restricted  in  a  free  trade  at 
any  of  the  ports  opened  to  them  by  our  treaty  under  the  pretext  that 
such  a  trade  is  more  favorable  to  one  party  than  to  the  other.  It 
would  be  well  if  our  citizens  confined  themselves  to  their  customary 
mode  of  dealing  in  China.  The  purchase  of  property  known  to  be  the 
spoils  of  the  contending  parties  would  undoubtedly  be  regarded  as  a 
species  of  participation  in  the  civil  conflict.  It  ought  to  be  discounte- 
nanced and  restrained." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Parker,  Oct.  5,  1855.     MSS.  Inst.,  China. 

The  Chinese  Government  having  obstinately  and  persistently  refused 
to  pay  a  claim  for  personal  damages  admitted  to  be  due  a  citizen  of  the 
United  States,  instructions  were  sent  in  1855  to  the  United  States  min- 
ister at  China,  at  his  discretion,  "  to  resort  to  the  measure  of  withhold-, 
ing  duties  to  the  amount.thereof." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Parker,  Oct.  5,  1855.     MSS.  Inst.,  China. 

The  display  of  the  American  flag  in  the  attack  by  the  British  on  Can- 
ton in  1856  was,  if  the  act  of  an  American  functionary,  an  act  calling 
for  his  removal. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Parker,  Feb.  2,  1857.    MSS.  Inst.,  China. 
448 


CHAP.  III.]  CHINA.  [§  67. 

"The  efifort  of  the  Chinese  Government  to  prevent  the  importation 
and  consumption  of  opium  was  a  praiseworthy  measure,  rendered  neces- 
sary by  the  prevalent  use  and  the  terrible  efiects  of  that  deleterious 
drug.  All  accounts  agree  as  to  the  magnitude  of  the  evil  and  the  wide- 
spread desolation  caused  by  it.  Upon  proper  occasions  you  will  make 
known  to  the  Chinese  officers  with  whom  you  may  have  communication 
that  the  Government  of  the  United  States  does  not  seek  for  their  citi- 
zens the  legal  establishment  of  the  oi)ium  trade,  nor  will  ir  uphold  them 
in  any  attempt  to  violate  the  laws  of  China  by  the  introduction  of  that 
article  into  the  country." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Eeed,  May  30,  1857.    MSS.  Inst.,  China. 

The  proposition  of  Mr.  Reed,  United  States  minister  in  1858  to  China, 
to  "unite  with  the  English  and  French  in  their  hostile  movements"  to 
compel  the  Chinese  Government  to  fulfill  its  treaty  obligations,  was 
held  to  be  inadmissible  without  the  consent  of  Congress. 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Reed,  1858  (no  other  date).     MSS.  Inst.,  China. 

"You  were  informed  by  mj- last  annual  message  that  our  minister 
had  been  instructed  to  occupy  a  neutral  i)osition  in  the  hostilities  con- 
ducted by  Great  Britain  and  France  against  Canton.  lie  was,  however, 
at  the  same  time,  directed  to  co-operate  cordially  with  the  British  and 
French  ministers  in  all  peaceful  measures  to  secure  by  treaty  tho.se  just 
concessions  to  foreign  commerce  which  the  nations  of  the  world  had  a 
right  to  demand.  It  was  impossible  for  me  to  proceed  further  than  this, 
on  my  own  authority,  without  usurpnig  the  war-makiiij,'  power,  which, 
under  the  Constitution,  belongs  exclusively  to  Congress. 

"  Besides,  after  a  careful  examination  of  the  nature  and  extent  of  our 
grievances,  I  did  not  believe  they  were  of  such  a  pressing  and  aggra- 
vated character  as  would  have  justified  Congress  in  declaring  war 
against  the  Chinese  Em])ire  without  lirst  makinganother  earnest  attempt 
to  adjust  them  by  peaceful  negotiation.  1  was  the  more  inclined  to  this 
opinion,  because  of  the  severe  chastisement  which  had  then  but  recently 
been  inflicted  upon  the  Chinese  by  our  squadron  in  the  capture  and 
destruction  of  the  Barrier  iforts  to  avenge  an  alleged  insult  to  our  Hag. 

"The  event  has  proved  the  wisdom  of  our  neutrality.  Our  minister 
has  executed  his  instructions  with  eminent  skill  and  ability.  In  con- 
junction with  the  Eussian  plenijmtentiary,  he  has  peacefully,  but  effect- 
ually, co-operated  with  the  English  an<l  French  i)lenipotentiaries  ;  and 
each  of  the  four  powers  has  concluded  a  separate  treaty  wiih  China,  of 
a  highly  satisfactory  character.  The  treaty  concluded  by  our  ])lenipo- 
tentiary  will  immediately  be  submitted  to  the  ^Senate. 

"  I  am  happy  to  announce  that,  through  the  energetic  yet  concilia- 
tory efforts  of  our  consul-general  in  Japan,  a  new  treaty  has  been  con- 
cluded with  that  Empire,  which  may  be  expected  materially  to  augment 
our  trade  and  intercourse  in  that  quarter,  and  reinove  from  our  coun- 
S.  Mis.  162— VOL.  T 29  449 


§  67.]  INTERVENTION.  [CHAP.  III. 

trymen  the  disabilities  which  have  heretofore  been  imposed  upon  the 
exercise  of  their  religion.  The  treaty  shall  be  submitted  to  the  Senate 
for  approval  without  delay." 

President  Bncliauau,  Second  Annual  Message,  1858.     See  for  treaty,  itijra,  §  144. 
President  Buchanan's  message,  of  Dec.  20,  1858,  containing  correspondenco  of 

Messrs.  McLane  and  Pai'ker,  commissioners  in  China,  is  given  in  Senate  Ex. 

Doc.  No.  22,  35th  Cong.,  2d  sess. 
Instructions  to  Mr.  Wm.  B.  Keed,  Minister  to  China,  are  given  in  Senate  Ex. 

Doc,  No.  47,  35th  Cong.,  1st  sess.     See  also  Senate  Ex.  Doc.  No.  30,  36th 

Cong.,  1st  sess.,  for  further  instructions. 

'^The  friendly  and  peaceful  policy  pursued  by  the  Government  of  the 
United  States  towards  the  Empire  of  China  has  produced  the  most  sat- 
isfactory results.  The  treaty  of  Tien-Tsin  of  the  18th  June,  185S,  has 
been  faithfully  observed  by  the  Chinese  authorities.  The  convention 
of  the  8th  November,  1858,  supplementary  to  this  treaty  for  the  adjust- 
ment and  satisfaction  of  the  claims  of  our  citizens  on  Chiua,  referred  to 
in  my  last  annual  message,  has  been  already  carried  into  effect,  so  far 
as  this  was  practicable.  Under  this  convention  the  sum  of  500,000  taels, 
equal  to  about  $700,000,  was  stipulated  to  be  paid  in  satisfaction  of  tUe 
claims  of  American  citizens  out  of  the  one-fifth  of  the  receipts  for  ton- 
nage, import,  and  export  duties  on  American  vessels  at  the  ports  of 
Canton,  Shanghai,  Foo-Chow;  and  it  was  *  agreed  that  this  amount  shall 
be  in  full  liquidation  of  all  claims  of  American  citizens  at  the  various 
ports  to  this  date.'  Debentures  for  this  amount,  to  wit,  300,000  taels 
for  Canton,  100,000  for  Shanghai,  and  100,000  for  Foo-Chow,  were  deliv- 
ered, according  to  the  terms  of  the  conveMtion,by  the  respective  Chinese 
collectors  of  the  customs  of  these  ports  to  the  agent  selected  by  our  min- 
ister to  receive  the  same.  Since  that  time  the  claims  of  our  citizens  have 
been  adjusted  by  ihe  board  of  commissioners  appointed  for  that  purpose 
under  the  act  of  March  3,  1859,  and  their  awards,  which  proved  satis- 
factory to  the  claimants,  have  been  approved  by  our  minister.  In  the 
aggregate  they  amount  to  the  sum  of  $198,094.78.  The  claimants  have 
already  received  a  large  proportion  of  the  sums  awarded  to  them  out  of 
the  fund  provided,  and  it  is  confidently  expected  that  the  remainder 
will,  ere  long,  be  entirely  paid.  After  the  awards  shall  have  been  sat- 
isfied, there  will  remain  a  surplus  of  more  than  $200,000  at  the  disposi- 
tion of  Congress.  As  this  will  in  equity  belong  to  the  Chinese  Govern- 
ment, would  not  justice  require  its  appropriation  to  some  benevolent 
object  in  which  the  Chinese  may  be  specially  interested?" 

President  Buchanan,  Fourth  Annual  Message,  18C0. 

"Your  dispatch  of  December  24,  No.  6,  has  been  received.  It  gives 
us  an  account  of  the  capture  and  occui)ation  of  the  city  of  Ningpo  by 
rebels,  and  of  the  proceedings  adopted  on  that  occasion  by  the  American 
consul  there  in  concert  with  the  British  and  French  representatives. 

"No  one  here  could  draw  any  inference  of  the  condition  of  things  at 
450 


CHAr.  Ill  ]  CHINA.  [§  67. 

Ningf  o  now,  from  even  the  fullest  information  of  what  it  was  so  long 
ago.  Revolutions  are  apt  to  effect  sudden  and  even  great  changes  in 
very  short  periods.  In  such  a  case  you  ought  not  to  be  trammeled  with 
arbitrary  instructions,  especially  in  view  of  the  peculiar  character  and 
habits  of  the  Chinese  ])eople  and  Government.  In  a  different  case  the 
President  would  certainly  instruct  you  to  refrain  most  carefully  from 
adopting  any  means  which  might  disturb  the  confidence  of  the  Imperial 
Government  or  give  it  any  cause  of  solicitude,  even  though  it  might 
seem  to  be  requiied  for  the  safety  of  the  property  and  interests  of 
American  citizens.  But  liow  can  we  know  here  what  ability  the  Im- 
perial Government  may  have,  or  even  what  disposition,  to  extend  the 
protection  to  foreigners  which  it  had  stipulated?  Nevertheless,  I  think 
that  it  is  your  duty  to  act  in  the  spirit  which  governs  us  in  our  inter- 
course with  all  friendly  nations,  and  especially  to  lend  no  aid,  encour- 
agement, or  countenance  to  sedition  or  rebellion  against  the  Imperial 
authority.  This  direction,  however,  must  not  be  followed  so  far  as  to 
put  in  jeopard^^  the  lives  or  property  of  American  citizens  in  China. 
Great  Britain  and  France  are  not  only  represented  in  China  by  diplo- 
matic agents,  but  their  agents  are  supported  by  land  and  naval  forces, 
while,  unfortunately,  you  are  not.  The  interests  of  tliis  country  in 
China,  so  far  as  I  understand  them,  are  identical  with  those  of  the  two 
other  nations  I  have  mentioned.  There  is  no  reason  to  doubt  that  the 
British  and  French  ministers  are  acting  in  such  a  manner  as  will  best 
promote  the  interests  of  all  the  western  nations.  You  are  therefore 
instructed  to  consult  and  co-operate  with  them,  unless,  in  special  cases, 
there  shall  be  very  satisfactory  reasons  for  separating  from  them,  and 
in  every  aspect  of  affairs  you  will  keep  me  well  advised.  Our  domes- 
tic affairs  are  improving  very  rapidly,  and  I  trust  we  sliall  soon  be  able 
to  send  a  war  steamer  to  your  support." 

Mr.  Seward,   Sec.  of  State,  to   Mr.   Biirlinganie,   Mur.  (J,    186-2.      MSS.   Inst., 
China;  Dip.  Corr.,  18G2. 

In  default  of  protection  from  the  local  authorities,  the  officers  of 
United  States  consulates  in  China  are  entitled  to  provide  themselves 
with  and  use  firearms  to  defend  themselves  from  mob  attack. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Williams,  Aug.  !'>,  1st;;;.     MSS.  Inst.,  China. 

Consuls  in  China  should  report  to  the  legation  all  cases  tLMiding  to 
bring  on  a  conflict  and  wait  instructions  before  resorting  to  force;  and 
the  legation,  before  resorting  to  force,  should  make  an  earnest  rei)re- 
seutation  to  the  Chinese  Governuient. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Williams.  Nov.-iO,  1SG(;.     MSS.  Inst.,  China. 

The  assumption  by  the  Chinese  Goverinnent  of  jurisdiction  in  suits, 
civil  or  criminal,  against  citizens  of  the  United  States  in  China  is  in 
conflict  with  the  treaty  of  June  18,  1858,  and  will  not  be  permitted  by 
the  Government  of  the  United  States. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Browne,  Feb.  1-,  18159.     MSS.  lust.,  China. 

451 


§  67.]  INTERVENTION.  [CHAP.  III. 

"  Eeferring  again  to  your  dispatch,  No.  8,  of  the  4th  of  May  last,  I 
propose  to  give  briefly  the  views  of  the  Department  as  to  the  policy  to 
be  pursued  toward  China. 

"I  am  induced  to  do  this  mainly  because  the  charge  d'affaires  of  North 
Germany  has,  under  instructions  from  his  Government,  inquired  of  me 
whether  the  President  still  adheres  to  the  principles  established  by  the 
additional  articles  to  the  treaty  of  June  18, 1858,  which  were  concluded 
July  28,  1868.  That  Government  has  on  several  occasions  manifested 
a  desire  to  harmonize  its  policy  with  ours  in  the  Pacific.  While  I  have 
freely  communicated  to  Mr.  Krause  the  views  which  we  entertain,  and 
have  gone  so  far  as  to  read  to  him  copious  extracts  from  the  communi- 
cations of  Mr.  Browne,  and  Mr.  George  Seward,  from  China,  I  thought 
as  you  are  soon  to  meet  Mr.  Burlingame  and  his  colleagues,  it  maj"  be 
well  to  give  you  a  little  more  in  detail  the  views  of  the  President  on 
this  question.  The  great  principle  which  underlies  the  articles  of  July, 
18G8,  is  the  recognition  of  the  sovereign  authority  of  the  Imperial  Gov- 
ernment of  Pekin  over  the  people  of  the  Chinese  Empire,  and  over 
their  social,  commercial,  and  political  relations  with  the  western  powers. 
Although  it  is  true  that  many  of  the  Christian  Governments,  including 
the  United  States,  had  before  then  concluded  treaties  with  the  Imperial 
Government,  yet  it  is  scarcely  exaggeration  to  say  that  their  relations 
at  that  time  were  rather  those  of  force  than  of  amity. 

"  The  commercial  foothold  along  the  coast  had  been  gained  by  con- 
flict or  by  demonstrations  of  force,  and  were  held  in  the  same  way. 
The  occupation  which,  orginally  hostile,  had  become  commercial — and 
so  far  friendly,  as  the  relations  of  commerce  demanded  a  show  of  amity — 
aimed  in  the  commencement,  with  some  European  settlers,  at  territorial 
acquisition ;  but  this  tendency'  had  been  checked  by  the  rivalry  of  dif- 
ferent nationalities,  until  the  foreign  jurisdiction,  more  by  the  tacit 
consent  of  the  foreigners  than  from  any  active  power  exercised  by  the 
Chinese,  had  become  limited  to  the  essential  matters  of  the  municipal 
government  of  the  communities  of  Europeans  and  the  exercise  of  juris- 
diction over  their  persons  and  properties.  The  communication  between 
China  and  the  outside  world  was  merely  confined  to  the  trading  i)oints. 
With  the  intellects  that  rule  that  nation  of  450,000,000  of  people,  with 
the  men  who  gave  it  its  ideas  and  directed  its  policy,  with  its  vast 
internal  industries,  with  its  great  agricultural  population,  the  traders, 
consuls,  and  functionaries  of  the  ports  rarely  came  in  contact  except  in 
the  contact  of  war.  The  European  Chinese  policy  was  one  of  isolation, 
inasmuch  as  it  only  sought  the  development  of  a  foreign  trade  at  cer- 
tain particular  ports,  and  of  disintegration,  as  it  practically  ignored 
the  central  Government,  and  made  war  upon  the  provinces  to  redress 
its  grievances  and  to  enforce  its  demands. 

"It  is  true,  indeed,  that  by  the  treaty  of  Tien-Tsin,  in  1858,  the  priv- 
ilege was  secured  to  the  United  States  and  the  European  powers  to 
maintain  legations  at  Pekin,  and  that  for  the  ten  years  that  followed 
452 


CHAP.  III.]  CHINA.  [§  67. 

diplomatic  representatives  resided  there.  It  is  also  true  tliat  from  that 
residence  and  the  contact  with  the  higher  Chinese  officials  there  has 
come  a  better  knowledge  of  the  Chinese  nation,  and  of  the  relation 
between  its  people  and  its  Government;  but  it  is  none  the  less  true 
that  those  treaties  closed  a  war  which  resulted  disastrously  to  China; 
that  before  their  ratifications  could  be  exchanged  another  war  became 
necessary  to  enforce  them ;  that  the  concessions  they  contained  were 
forced  from  the  Imperial  Government;  that  the  new  policy  was  not 
favored  by  the  Chinese  statesmen ;  that  it  did  not  measurably  increase 
the  personal  intercourse  between  the  natives  and  the  Europeans;  and 
that  many  of  the  wisest  of  the  Chinese  rulers  honestly  dreaded  any  in- 
crease in  such  intercourse,  as  tending  to  the  introduction  in  China  of  the 
labor-saving  machines  of  the  west,  which,  in  their  judgment,  would  throw 
multitudes  of  people  in  their  thickly-settled  country  out  of  employment, 
reduce  them  to  beggary  and  starvation,  and  inflict  irreparable  woes  on 
China.  For  an  able  and  temjierate  statement  of  these  views  by  a  per- 
son who  is  described  by  Mr.  Browne  as  a  man  'of  acknowledged  ability 
and  commanding  influence,'  'who  is  rega7<ied  as  the  most  enlightened 
statesman  of  the  Empire,'  1  refer  you  to  the  remarkable  inclosure, 
marked  No.  1,  which  I  shall  subsequently  allude  to  further.  To  say 
that  such  views  are  fallacious  and  obsolete ;  that  they  are  confuted  by 
the  experience  of  western  nations  like  England  and  Belgium,  which 
have  as  great  a  population  to  the  square  mile  as  China;  that  they  are 
opposed  to  all  sound  theories  of  political  economy,  does  not  meet  the 
case.  The  facts  remain  that  they  did  at  one  time  control  the  policy  qf 
China,  and  that  they  are  still  adhered  to  by  many  of  her  leading  states- 
men ;  and  in  dealing  with  this  question  these  facts  must  not  be  lost 
sight  of. 

"The  treaty  negotiated  by  Mr.  Burlingame  and  his  colleagues  was  a 
long  step  in  another  direction.  It  came  voluntarily  from  China,  and 
placed  that  power  in  theory  on  the  same  diplonuitic  footing  with  the 
nations  of  the  western  world.  It  recognizes  the  Imperial  Government 
as  the  power  to  withhold  or  to  grant  further  commercial  ])rivileges,  ami 
also  as  the  power  whose  duty  it  is  to  enforce  the  peaceful  t'njoyment  of 
the  rights  already  conferred. 

"  While  it  confirms  the  interterritorial  Jurisdiction  conferred  by  former 
treaties  upon  European  and  American  functionaries  over  the  persons 
and  properties  of  their  countrymen,  it  recognizes  at  the  same  time  the 
territorial  integrity  of  China,  and  prevents  such  a  jurisdiction  from 
being  stretched  beyond  its  original  i)urpose.  While  it  leaves  in  China 
the  sovereign  power  of  granting  to  foreigners  hereafter  the  right  to 
construct  lines  of  railroads  and  telegraphs,  of  opening  mines,  of  navi- 
gating the  rivers  of  the  Emi)ire  with  steamers,  and  of  otherwise  increas- 
ing the  outlets  for  its  wealth,  by  the  use  of  the  appliances  of  western 
civilization,  it  contemplates  that  China  shall  avail  herself  of  these  appli- 
ances by  reasonable  concessions,  to  be  made  as  public  necessities  and 

4dJ 


§  67.]  INTERVENTION.  [CHAP.  III. 

the  loower  of  the  Goverumeiit  to  iuflueiice  public  opinion  will  permit. 
This  treatj'  has  not  yet  been  ratilied  by  the  Imperial  Government,  and 
I  am  informed  by  Mr.  Browne  that  Prince  Kung  'deems  it  advisable 
to  defer  the  exchange  of  ratifications  till  the  return  of  the  Chinese 
l)lenipotentiqi'ies.'  Mr.  Browne  does  not  '  infer  any  slight  to  our  Gov- 
ernment from  this  delay,  or  any  want  of  appreciation  of  its  friendship,' 
and  he  thinks  that  'the  true  cause  of  the  delay  may  be  found  in  the 
peculiar  attitude  of  China  toward  all  the  treaty  powers.'  '  When  the 
Government  of  China,'  he  adds,  '  is  satislied  that  it  will  not  be  injurious 
to  its  interests  to  accept  these  articles,  it  will  do  so.' 

"The  President  has  been  disposed  to  view  this  matter  in  the  same 
light,  and,  therefore,  has  not  pressed  for  a  ratification,  feeling  confident 
that,  as  the  treaty  is  so  much  in  the  interest  of  China,  the  statesmen  of 
that  Empire  must  inevitably  see  the  propriety  of  authorizing  the  ratifi- 
cations to  be  exchanged.  Rumors  reach  us  by  telegraph  from  Hong- 
Kong,  by  way  of  London,  that  the  Imperial  Government  have  decided 
not  to  ratify  this  treaty,  but  we  are  not  inclined  to  credit  them,  as  they 
are  opposed  to  the  general  tenor  of  our  information.  Some  things  have 
taken  place,  however,  which,  regarded  by  themselves,  tend  to  lead  us 
to  the  conclusion  that  it  is  possible  that  China  may  reverse  her  policy ; 
and  in  order  that  you  may  have  full  information  on  this  subject,  it  is 
proper  that  I  should  briefly  state  them. 

"  Not  long  after  the  treaties  of  Tien-Tsin,  what  is  known  as  the  co-op- 
erative policy  of  the  great  powers  in  China  began ;  I  think  this  dates  from 
about  the  year  1S63,  but  it  is  immaterial  for  my  present  purpose  whether 
it  began  earlier  or  later.  Under  this  policy,  favored  by  the  fact  that  most 
or  all  of  the  treaties  with  the  western  powers  contained  the  most-favored- 
nation  clause,  the  Christian  communities  of  all  nationalities  in  China 
have  been  regarded  as  having  a  common  political  as  well  as  commercial 
interest,  to  be  i)ursued  under  joint  counsels,  and  it  has  followed  from 
this  that  in  important  matters  the  Chinese  officials  have  been  made  to 
see,  sometimes  even  with  a  show  of  ostentation,  that  there  was  a  sub- 
stantial unity  of  design  among  all  the  powers.  The  apprehension  has 
been  expressed  lest  the  operation  of  the  eighth  article  of  the  treaty  of 
July  should  put  a  stop  to  this  co-operative  policy  ;  and  I  am  bound  to 
say  that,  so  far  as  that  policy-  was  aggressive  and  attempted  to  force 
upon  China  measures  which  could  not  be  enforced  upon  a  European  or 
American  state  by  the  rules  of  the  equitable  code  which  regulates  the 
intercourse  of  civilized  nations,  in  ray  judgment,  that  article  may,  when 
ratifications  are  exchanged,  prevent  the  United  States  from  participat- 
ing in  such  a  ])olicy. 

"  The  question  becomes  a  practical  one  from  the  fact  that  the  revision 
of  the  British  treaty  of  1858  is  under  consideration.  The  twenty-seventh 
article  of  that  treaty  provided  that  either  party  might  '  demand  a  further 
revision  of  the  tariff  and  of  the  commercial  articles  of  the  treaty  at  the 
end  often  years;  but  if  no  demand  be  made  on  either  side  within  six 
454 


CHAP.  III.]  .     CHINA.  [§  G7. 

montlis  after  the  end  of  the  first  t(Mi  years,  tbeu  the  ttirifl'sljull  remain 
in  force  for  ten  years  more,  reckoned  from  the  end  of  the  preceding  ten 
years.' 

"The  thirtieth  article  of  the  treaty  between  China  and  the  United 
States  of  1858  provides  that  '  shouhl  at  any  time  the  Ta-Tsing  Empire 
grant  to  any  nation,  or  the  merchants  or  citizens  of  any  nation,  auy  right, 
privilege,  or  favor,  connected  either  with  navigation,  commerce,  i)olitical) 
and  other  intercourse,  which  is  not  conferred  by  this  treaty,  such  right, 
privilege,  or  favor  shall  at  once  inure  to  the  benefit  of  the  United 
States,  its  public  ofQcers,  merchants,  and  citizens,'  Thus  the  United 
States  became  directl}'  interested  in  the  revision  of  the  British  conces- 
sions. 

"It  being  well  understood  that  Great  Britain  would,  when  the  time 
came,  demand,  among  other  things,  the  right  to  navigate  the  interior 
waters  of  the  Empire  with  steam,  the  right  to  construct  and  to  hire 
warehouses  in  the  interior  for  the  storage  of  goods,  and  the  right  to 
work  coal  mines,  the  Government  at  Pekin,  on  the  12th  of  October, 
1867,  took  steps  to  get  information  from  the  different  parts  of  the  Em- 
pire upon  the  subject  of  the  revision.  Among  others,  Tsang-Kwohfan, 
acting  governor  of  the  provinces  of  Kiangru,  Nganhioui,  and  Kiangri, 
'  a  man  over  seventy  years  of  age  and  of  distinguished  reputation 
throughout  the  Empire,'  received  these  instructions,  and  made,  in  an- 
swer to  them,  the  able  report,  to  the  copy  of  which,  herewith  inclosed, 
marked  Xo.  1,  I  have  already  called  your  attention. 

"  Though  the  work  of  a  conservative  miud  that  clings  to  the  traditions 
of  the  i)ast,  and  sees  few  good  results  in  change,  it  is  moderate  and 
temperate,  and  nuist  be  conceded  to  be,  from  the  Chinese  standpoint,  a 
not  unwise  view  of  the  subject.  With  all  its  conservatism  it  is  easy  to 
trace  in  it  the  enlarging  and  modifying  influences  of  contact  with  the 
west. 

"  In  substance,  howevei-,  it  recommends  the  Emperor's  advisers  not 
to  grant  the  important  new  concessions  asked  for  by  the  Government  of 
Great  Britain. 

"  In  November  last  the  expected  demands  were  made  on  the  part  of 
Great  Britain  by  Sir  llutherford  Alcock,  in  a  i)ersonal  interview  with 
Prince  Ivung  and  some  of  the  other  ministers.  They  were  made  in 
strong  language,  as  necessary  to  the  proi)er  enjoyment  of  the  rights 
conceded  by  tha  treaty  of  1858,  and  the  Chinese  Government  was 
warned  in  advance  of  the  probable  course  Great  Britain  would  juirsue 
in  case  of  refusal.  The  American  minister  gave  Sir  Kutherford  Alcock 
the  support  of  his  presence  at  the  interview,  and  afterward  received 
from  Sir  Rutherford  full  copies  of  an  account  of  it  which  was  drawn  up 
in  the  British  legation  and  transmitted  to  Prince  Kung.  I  inclose, 
marked  No.  2  and  No.  3,  copies  of  these  documents. 

"  Prince  Kung,  on  his  part,  soon  replied  in  a  dignitied  and  moderate 
way  to  the  peremptory  demands  of  Sir  Eutherford  Alcock.     lie  ad- 

4iOo 


§  67.]  INTERVENTION.  [CHAP.  III. 

mitted  the  substautial  accuracy  of  Sir  Rutherford's  account  of  the 
interview.  He  said  that  China  and  Great  Britain  could  not  be  coerced 
into  a  simihirity,  neither  could  either  wholly  adopt  the  usages  of  the 
other.  He  deprecated  the  entire  submission  of  China  to  the  demands  of 
the  foreign  merchants.  He  denied  that  there  had  been  willful  violations 
of  the  treaty.  He  stated,  in  detail,  manyijoints  in  which  China  is  pre- 
pared to  make  concessions,  which  will,  he  thinks,  give  to  the  foreign 
merchants  all  they  ought  to  ask.  But  to  admit  steamers  on  the  interior 
lakes  and  rivers,  to  establish  hongs,  and  to  carry  on  mining  operations 
in  the  interior,  will,  in  the  judgment  of  the  Prince,  be  so  distasteful  to 
the  peoi)le  that  it  will  be  impracticable  for  the  Government  to  attempt 
to  carry  out  the  terms  of  such  a  concession  should  it  be  made;  and 
Great  Britain,  in  that  case,  would  have  just  cause  to  upbraid  China  for 
bad  faith. 

"  To  the  representation  that  these  concessions  would  be  beneficial  to 
China,  the  Prince  replies  that  a  good  physfcian  ascertains  the  condition 
of  his  patient  before  deciding  on  the  remedies,  and  intimates  that  he 
knows  the  condition  of  China  better  than  Sir  Rutherford  Alcock  does; 
and  he  closes  by  furnishing  the  British  envoy  with  a  memorandum  of 
the  basis  for  a  revision  which  will  be  acceptable  to  the  Chinese  Gov- 
ernment.   •!  inclose  copies  of  these  papers,  marked  Xo.  4  and  No.  C. 

"As  Mr.  Browne  had,  in  ])ursuance  of  the  co-operative  policy,  inter- 
fered personally  and  in  writing  (see  inclosure  No.  5)  on  behalf  of  the 
British  claim  for  a  revision.  Prince  Kung,  about  the  same  time,  ad- 
dressed a  note  to  him,  of  which  1  inclose  a  copy  (No.  7). 

"  The  basis  for  a  revision,  which  was  proposed  by  the  Chinese  Gov- 
ernment, conceded  the  opening  of  landing  stages  on  the  Yangtse  at 
points  to  be  agreed  upon ;  the  working  of  mines  in  the  vicinity  of  one 
or  more  of  the  treaty  ports;  the  right  of  inland  navigation  by  vessels 
not  propelled  by  steam,  this  restriction  to  cease  when  Chinese  use  ves- 
sels propelled  by  steam ;  a  steam-tug  on  the  Poyang  Lake;  and  the 
free  right  to  travel  throughout  the  laud,  and  to  hire  lodgings  and  ac- 
commodations for  produce  or  goods. 

"  Mr.  Ross  Browne,  who  sympathized  and  co-operated  with  the  British 
minister  throughout  the  negotiations,  appears  to  think  that  the  points 
gained  may  become  of  importance  as  a  starting  point  for  negotiations 
hereafter.  I  inclose  you  a  copy  of  his  letter  to  Sir  Rutherford  Alcock 
on  the  subject  (No.  8). 

"The  British  minister  at  Washington,  on  the  9th  day  of  June  last, 
notified  the  United  States  of  the  decision  of  Her  Majesty's  Government 
on  this  subject,  by  which  it  would  ai)pear  that  they  have  decided  to 
accept  the  situation  and  wait  quietly  the  operation  of  the  causes  which 
are  working  in  the  Chinese  mind.  I  inclose  (marked  No.  0)  a  copy  of 
an  extract  from  a  letter  from  the  board  of  trade,  which  has  been  sent 
to  Sir  Rutherford  Alcock  for  his  guidance.  Such  course  strikes  me  as 
wiser  than  the  more  vigorous  policy  which  Sir  Rutherford  Alcock  seems 
45G 


CHAP,  til]  china.  [§  67. 

to  have  contemplated.  The  points  gained  may  not  be  as  important  as 
(iould  be  desired,  yet  they  have  been  gained  peaceably,  by  negotiation, 
and  are  yielded  by  China  as  a  right  flowing  legitimately  and  necessarily 
from  former  treaties. 

"  It  certainly  looks,  on  the  face  of  this  correspondence,  as  if  the  con- 
duct of  the  Emperors  ministers  had  been  inspired  from  the  first  by  a 
sense  of  duty,  by  a  desire  to  observe  good  faith  toward  the  western 
l)owers,  and  by  a  willingness  to  extend  commercial  relations  with  those 
powers,  when  they  felt  that  they  could  do  so  without  prejudice  to  their 
own  position  and  without  injury  to  the  people  whose  government  was 
intrusted  to  them. 

"  I  will  not  dwell  upon  the  obvious  difficulty  of  inoculating  new  ideas 
u])on  such  a  people,  nor  upon  the  evident  fact  that  intelligent  states- 
men like  Prince  Kung  and  his  associates  measure  those  difliculties 
quite  u))  to  their  full  value. 

"Every  consideration,  from  whatever  i)oint  of  view,  leads  me  to  be- 
lieve that  it  is  neither  wise  nor  just  to  force  the  Emperor's  advisers  into 
a  position  of  hostility  so  long  as  we  have  cause  to  think  that  they  are 
willing  to  accept  the  present  situation,  and  to  march  forward,  although 
with  the  prudence  taught  them  by  a  Chinese  education.  You  will  un- 
doubtedly meet  JNIr.  Builingameand  his  associates  in  Berlin.  You  will, 
if  you  i^lease,  ascertain  from  him  whether  he  has  definite  information 
as  to  the  intentions  of  the  ministry  at  Pekin.  Unless  it  shall  appear 
that  they  have  already  decided  not  to  ratify  the  treaty  of  1808,  or  unless 
you  shall  be  satisfied  that  such  will  be  their  decision,  and  that  the  policy 
inaugurated  by  Mr.  Burliugame  is  to  be  reversed,  you  will  render  him 
and  his  associates  whatever  assistance  you  can,  in  securing  the  co-oper- 
ation of  North  Germany  in  the  new  Chinese  i)olicy.  You  will  also 
doubtless  have  an  opportunity  to  impress  upon  Mr.  Burlinganu>  the 
importance  to  China  of  an  early  ratification  of  the  treaties.  I  have 
staged  already  that  the  President  has  no  solicitude  as  to  the  purpose 
of  the  Emperor's  advisers  in  that  respect.  But  he  thinks  it  would  be 
well  to  have  defined  in  a  permanent  law,  as  soon  as  i)Ossible,  the  rela- 
tions that  are  hereafter  to  exist  between  the  United  States  and  China. 
"  Many  considerations  call  for  this  beside  those  which  may  be  de- 
duced from  what  has  gone  before  in  this  instruction.  Every  month 
brings  thousands  of  Chinese  immigrants  to  the  Pacific  Coast.  Already 
they  have  crossed  the  great  mountains,  and  are  beginning  to  be  fbund 
in  the  interior  of  the  continent.  By  their  assiduity,  i)atience,  and  fidel- 
ity, and  by  their  intelligence,  they  earn  the  good-will  and  confidence  of 
those  who  employ  them.  We  have  good  reasoii  to  think  that  this  thing 
will  continue  and  increase.  On  the  other  hand,  in  (3hina  there  will  be 
an  increase  in  the  resident  American  and  European  population,  not  by 
any  means  commensurate  with  the  growth  of  the  Chinese  immigration  to 
this  country,  but  corresponding  with  the  growth  of  our  country,  with 

457 


§  67.]  INTERVKNTION.  [cHAP.  III. 

the  development  of  its  resources  on  the  Pacific  slope,  and  with  the  new 
position  in  the  commerce  of  the  world  which  it  takes  with  the  comple 
tion  of  the  Pacific  Kailroad.  These  foreigners  settling  in  Chiua,  occu- 
pying the  various  quarters  assigned  to  tliem,  exercising  municipal  rights 
over  these  quarters  by  virtue  of  land  regulations,  either  made  by  them 
or  for  them,  b^'  their  home  Governments,  cease  to  be  an  aggressive  ele- 
ment in  China,  when  once  the  jjriuciples  of  the  treaty  of  July,  1SG8,  are 
promulgated  as  the  law  hereafter  to  regulate  the  relations  between 
Christendom  and  that  ancient  Empire.  You  will  also  say  to  Mr.  Bur- 
lingame  that,  while  the  President  cordially  gives  his  adhesion  to  the 
princi])les  of  the  treaty  of  1868,  and  while  he  will,  should  that  instrument 
be  ratified  by  China,  cause  it  to  be  faithfully  observed  by  the  United 
States,  yet  he  earnestly  hopes  that  the  advisers  of  His  Majesty  the  Em- 
peror may  soon  see  their  way  clear  to  counsel  the  granting  of  some 
concessions  similar  to  those  asked  for  by  Sir  Ilntherford  Alcock  and 
Mr.  Eoss  Browne.  He  will  not  assume  to  judge  whether  the  temper  of 
the  people  of  China  will  or  will  not  at  present  justify  their  rulers  in 
doing  so;  but  he  thinks  that  he  may,  without  impropriety,  say,  that 
when  it  can  be  done  without  disturbing  the  good  order  of  the  Empire, 
the  results  must  be  eminently  favorable  to  the  welfare  and  vrell-being 
of  the  Chinese  people.  And  he  trusts  that  the  statesmen  of  China,  en- 
lightened by  the  experience  of  other  nations,  will  hasten  at  the  earliest 
moment,  when  in  their  judgment  it  can  safely  be  done,  to  respond  to 
the  friendly  feeling  and  good  wishes  of  the  United  States  by  moderating 
the  restrictions  which  fetter  the  commerce  of  the  great  Empire  over 
whose  destinies  they  preside.  He  relies  upon  Mr.  Burlingame  and  his 
associates  to  impress  upon  their  chiefs  at  home  that  the  views  of  such 
men  as  Tsang  Kevohfan,  however  honest,  are  delusive  ;  that  experience, 
patent  before  them  in  every  country  through  which  they  travel,  has 
shown  them  that  the  evils  which  seem  to  be  dreaded  by  the  oriental  rulers 
do  not  follow  the  free  use  of  steam  and  of  the  telegraph  :  but  that, 
while  these  inventions  improve  the  condition  of  all  ranks  in  the  com- 
munity which  uses  them,  their  greatest  meliorating  influence  is  felt 
among  the  laboring  classes. 

'•Since  writing  the  foregoing  instructions,  I  have  received  from  Mr. 
Burlingame  a  telegraphic  dispatch  dated  August  31,  1809,  in  which 
he  says:  'I  have  leceived  a  dispatch  from  the  Chinese  Government 
expressing  strongly  their  satisfaction  with,  and  acceptance  of,  the  treaty 
negotiated  at  Washington.'" 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Baucrolt,  Ang.  31,  ^G9.     MSS.  Inst.,  Geiin. ; 
For.  Eel.,  1870. 

"  It  was  deemed  advisable  last  summer  to  acquaint  Mr.  Bancroft,  in 

anticipation  of  the  arrival  of  the  Chinese  mission  at  Berlin,  with  the 

views  of  the  present  Administration  concerning  the  policy  to  be  pursued 

toward  China.    As  these  instructions  contain  the  substance  of  most 

458 


CHAP.  III.]  CHINA.  [§  67. 

that  it  is  necessary  to  say  to  you  before  you  sail  to  your  post,  I  inclose 
a  copy  of  them  herewith  and  iuvite  your  special  attention  to  them. 

''You  will  observe  that  the  President  adheres  to  the  policy  adopted 
in  1868,  when  the  articles  additional  to  the  treaty  of  1858  (commonly 
known  as  the  Bnrlingame  treaty)  were  concluded.  You  will,  tlicrefore, 
so  shape  your  private  as  well  as  your  official  conversation  as  to  demon- 
strate to  Prince  Knug  the  sincerity  of  the  United  States  in  its  wishes 
for  the  maintenance  of  the  authority  of  the  central  Government  and  for 
the  peaceful  spread  of  its  intluence.  You  will  make  clear  to  the  Govern- 
ment to  which  you  are  accredited  the  settled  purpose  of  the  President 
to  observe  with  fidelity  all  the  treaty  obligations  of  the  United  States, 
and  to  respect  the  prejudices  and  traditions  of  the  people  of  China 
when  they  do  not  interfere  with  rights  which  have  been  acquired  to  the 
United  States  by  treaty.  On  the  other  hand  you  will  uot  fail  to  make 
it  distinctly  understood  that  he  will  claim  the  full  performance,  by  the 
Chinese  Government,  of  all  the  promises  and  obligations  which  it  has 
assumed  by  treaties  or  conventions  with  the  United  States.  On  this 
])oint,  and  in  the  maintenance  of  our  existing  rights  to  their  full  extent, 
you  will  be  always  firm  and  decisive.  While  you  will  put  forward  these 
claims  where  occasion  requires,  with  prudence  and  moderation,  you  will 
be  unyielding  in  demanding  the  extreme  protection  of  the  American 
citizens,  commerce,  and  property  which  is  conceded  by  the  treaties,  and 
in  requiring  the  full  recognition  of  your  own  oflQcial  position  to  which 
you  are  entitled. 

"The  instructions  to  Mr.  Bancroft  set  forth  vso  fully  the  policy  of  the 

United  States  toward  China,  the  ends  to  be  accomplished  there,  ami  the 

peaceful  spirit  which  is  to  animate  your  mission,  that  I  content  myself 

with  again  referring  you  to  them  for  your  guidance  in  those  respects." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Low,  Dec.  :i,  1869.     MSS.  lust.,  China:  For. 

Eel.,  1870. 

On  April  4,  1870,  Mr.  Fish,  Secretary  of  State,  addressed  a  letter  to 
Mr.  Robeson,  Secretary  of  the  Navy,  in  which  it  was  stated  that  the 
President  had  ordered  that  the  naval  forces  of  the  United  States  on  the 
China  seas  should  unite  with  the  North  German  fleet  there  stationed  in 
repressing  "  cases  of  recognized  piracy." 
iVlSS.  Dual.  Let. 

The  President,  in  April,  1870,  concurred  in  the  i)roposition  of  (lie 
German  Government  that  there  should  be  a  combined  action  of  the 
powers  concerned  in  the  Chinese  trade  against  the  pirates  on  the  Chi- 
nese waters,  and  instructions  were  issued  by  the  Navy  DepartnuMit  to 
Admiral  Kodgers  accordingly. 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Low,  Apr.  20, 1S70.     MSS.  Inst.,  China. 

"  Eeferriug  to  my  No.  259,  inclosing  a  copy  of  Mr.  Fish's  telegram  of 
the  1st  instant,  instructing  you  to  propose  to  the  North  German  Gov- 

459 


§  G7.]  INTERVENTION.  [CHAP.  III. 

ernment  a  suspeusiou  of  hostilities  in  Chinese  waters,  I  have  to  say 
that  no  reply  or  acknowledgment  has  been  received. 

"When  the  massacre  of  Tieu-Tsiu  took  place,  Mr.  Low  was  of  opinion 
that  the  outbreak  was  a  local  one  and  unpremeditated,  *  *  *  and 
although  the  Chinese  populace  were  still  much  excited,  Mr.  Low  thought 
that  the  dangerwas  over,  that  the  Government  was  sincere  in  its  inten- 
tion to  prevent  a  repetition  and  to  punish  the  offenders,  and  that  there 
was  no  probability  of  similar  outbreaks  elsewhere. 

"In  his  subsequent  dispatches  he  still  adheres  to  his  original  opinion 
that  the  disturbance  was  local  and  unpremeditated,  and  that  the  Gov- 
ernment at  Pekin  sincerely  desired  to  prevent  a  repetition  aiid  to  pre- 
serve peace ;  but  he  appears  to  have  decidedly  modified  his  opinion  as 
to  the  probability  that  they  will  be  able  to  do  so.  Bis  doubts  are 
founded  on  the  injudicious  course  pursued  by  the  French  charg6  d'af- 
faires in  demanding  the  summary  execution  of  the  Tieu-Tsin  ofiBcials  as 
an  ultimatum,  and  upon  the  hopes  the  populace  in  the  large  Chinese 
cities  derive  from  the  state  of  war  existing  between  Germany  and 
France,  which  they  argue  will  neutralize  the  force  of  those  two 
powers.  He  expresses  the  fear  that  the  Government  at  Pekin  may 
find  itself  too  weak  to  resist  the  pressure  of  popular  opinion  in  the 
masses,  acting  in  harmony  with  the  cherished  wishes  and  purposes  of 
the  literati,  and  that  it  may  be  forced  into  war  to  i)revent  popular 
outbreaks. 

"It  seemed  to  the  President  that  these  views  coming  from  a  gentle- 
man so  cautious,  dispassionate,  and  prudent  as  Mr.  Low,  were  entitled 
to  more  than  the  ordinary  consideration.  He  therefore  directed,  after 
consultation  with  the  Cabinet,  the  telegram  of  the  1st  instant  to  be  sent 
to  you,  believing  that  any  advantage  which  one  belligerent  might  gain 
over  the  other  in  eastern  waters  would  be  of  small  consequence  to  the 
victor,  compared  with  the  preservation  of  peace  in  China. 

"  The  Piesident  does  not  intend  to  depart  from  the  policy  pointed  out 
in  Mr.  Fish's  dispatch  No.  148,  of  August  31,  1869.  He  does  not  pro- 
pose to  take  part,  nor  does  he  invite  North  Germany  to  take  part,  in 
any  controversy  between  France  and  China  growing  out  of  the  massacre 
of  Tien-Tsin.  He  only  desires  that  so  far  as  the  impression  of  the  neu- 
tralization of  German  and  French  influence  by  the  state  of  hostilities 
operated  to  enfeeble  the  central  Government,  that  impression  may  be 
removed;  and  that  should  unfortunately  a  general  war  be  declared  by 
China,  or  should  an  outbreak  against  foreignera  take  place  which  the 
Government  cannot  prevent  nor  punish,  the  several  i)owers  may  be  in  a 
position  to  aflbrd  the  fullest  measure  of  protection. 

"I  inclose  copies  of  two  telegrams  from  Mr.  Motley,  which  would  seem 
to  indicate  that  the  commanders  of  the  French  and  Prussian  fleets  have 
come  to  some  understanding,  but  it  is  not  clear  that  this  has  been  rati- 
fied at  Berlin  and  Paris. 
4G0 


CHAP.  III.]  CHINA.  [§  G7. 

"I  also  inclose  a  copy  of  a  communication  of  the  otli  instant  from 
Biiron  Gerolt  bearing  upon  this  subject." 

Mr.  J.  C.  B.  Davis,  Acting  Sec.  of  State,  to  Mr.  Baucrott,  Nov.  8,  1870.      MSS. 

Inst.,  Germ.;  For.  Rel.,  1870. 
As  to  protection  of  Americau  interests  in  China  and  Japan,  sec  Senate  Ex. 

Doc.  Nos.  52,  58,  4l8t  Cong.,  Ist  sess. 

"Anticipating-  trouble  from  this  cause  (the  effect  of  the  war  between 
France  and  Germany  in  aggravating  the  difliculties  of  foreigners  in 
China),  I  invited  France  and  North  Germany  to  make  an  authorized 
suspension  of  hostilities  in  the  East  (where  they  were  temporarily  sus- 
pended by  the  commanders),  and  to  act  together  for  the  future  protec- 
tion, in  China,  of  the  lives  and  properties  of  Americans  and  Europeans." 

President  Grant,  Second  Annual  Message,  1870. 

On  December  31,  1872,  it  was  declared  by  the  President  that  the 
period  had  arrived  when  an  audience  by  diplomatic  representatives 
with  the  Emperor  of  China  should  be  demanded,  but  that  this  demand 
should  be  in  concert  with  the  western  powers. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Low,  Dec.  21,  1872.     MSS.  Inst.,  China.     See 
same  to  same,  Dec.  30,  1872. 

This,  however,  was  afterwards  left  to  the  "best  judgment"  of  the 
minister. 

Mr.  Fish  to  Mr.  Avery,  July  1,  1875,  ibid.     See  infra,  §  83. 

"  In  connection  with  this  subject  1  call  the  attention  of  Congress  to  a 
generally  conceded  fact,  that  the  great  proportion  of  the  Chinese  immi- 
grants who  come  to  our  shores  do  not  come  voluntarily  to  make  their 
homes  with  us  and  their  labor  i)roductive  of  general  i)rosperity,  but 
come  under  contracts  with  head-men  who  own  them  aloiost  absolutely. 
In  a  worse  form  does  this  apply  to  Chinese  women.  Hardly  a  percepti- 
ble percentage  of  them  i)erform  any  honorable  labor,  but  they  are 
brought  for  shameful  purposes,  to  the  disgrace  of  the  comnuinities 
where  settled,  and  to  the  great  demoralization  of  the  youth  of  those 
localities.  If  this  evil  practice  can  be  legislated  against,  it  will  be  my 
pleasure,  as  well  as  duty,  to  enforce  any  regulation  to  secure  so  desira- 
ble an  end." 

President  Grant,  Sixth  Annual  Message,  1874. 

While  the  (Jnited  States  Government  will  not  permit  any  discrimina- 
tions against  its  citizens  in  China  on  account  of  their  maintenance  of 
their  religious  views,  this  does  not  imply  the  countenancing  of  them  in 
"  the  obtrusive  presentation  of  certain  views  in  violation  of  the  laws  of 
a  country  in  which  the  parties  have  entered." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  G.  F.  Seward,  May  2,  1876.     MSS.  Inst.,  China. 

There  will  be  no  diplomatic  interposition  in  China  to  protect  from 
Chinese  prosecution  a  native  Chinese  Christian  preacher  charged  with 

461 


§  67.]  INTERVENTION.  [CHAP.  III. 

a  personal  offense  when  the  proceedings  against  him  are  exclusively  for 
such  offense. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  G.  F.  Seward,  June  12, 1876.     MSS.  Inst.,  China. 

As  to  course  taken  by  the  United.  States  legation  in  China  in  respect  to  mis- 
sionaries, ftee  instructions  of  Mr.  Fish,  Sec.  of  State,  to  Mr.  G.  F.  Seward, 
June  12,  July  22,  1876;  MSS.  Inst.,  China;  and  Mr.  Seward's  dispatch  of 
May  9,  1876.     See  also  supra,  ^  54. 

The  application  of  the  settled  principles  of  international  law  to  the 
Chinese  in  the  United  States  is  to  be  modified  by  the  fact  that  the 
Chinese  decline  to  accept  these  principles,  leading  an  isolated  life  in  the 
communities  in  which  they  are  settled,  always  expecting  to  return  to 
China,  and  never,  therefore,  becoming  domiciled  among  us,  and  that  they 
maintain  the  same  system  of  isolation  towards  Americans  in  China, 
regarding  them  always  as  strangers,  more  or  less  outside  of  the  protec- 
tion of  the  law. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  G.  F.  Seward,  Aug.  31,  1876.     MSS.  Inst.,  China. 
This  subject  is  discussed  at  length  infra  in  this  section. 

The  position  of  the  United  States  as  the  only  commercial  or  western 
nation  that  is  a  commercial  power  of  the  Pacific  Ocean,  and  as  a  country 
exporting  largely  from  and  importing  largely  into  China,  and  this  by 
the  nearest  line  of  approach,  makes  our  relations  with  China  peculiarly 
close,  and  it  is  important  for  our  legation  to  press  upon  China,  in  ordfer 
to  carry  out  freely  these  commercial  relations,  "  that  imported  goods, 
while  they  retain  this  quality,  and  are  identified  in  form  and  condition 
of  importation,  not  having  been  broken  up  or  distributed  into  the  mass 
of  domestic  property,  are  to  be  subjected  to  no  further  taxation  ante- 
cedent to  such  distribution,  and  to  no  discriminating  taxation  in  their 
quality  of  foreign  goods  after  such  distribution."  There  should  also  be 
"  no  discrimination  favorable  to  one  foreign  nation,  directly  or  covertly, 
in  the  adjustment  of  duties." 

Mr.  EvartR,  Sec.  of  State,  to  Messrs.  Angell  et  a?.,  June  7,  1880.  MSS.  Inst., 
China. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  10th 
of  November  last,  in  relation  to  the  recent  unfortunate  occurrences  at 
Denver,  Colo.,  by  which  certain  Chinese  residents  of  that  city  suffered 
very  serious  injuries  in  their  persons  and  property,  were  subjected  to 
wanton  and  undeserved  outrage,  and  one  of  their  number  killed. 

"  These  sad  consef(uences  resulted  from  the  conduct  and  action  of  a 
lawless  mob,  who,  for  a  brief  period,  during  the  31st  of  October  and  the 
night  following  that  day,  obtained  the  mastery  over  the  law  and  the 
local  authorities.  The  attack  of  the  mob  appears  to  have  been,  at  first, 
indiscriminately  directed  against  the  peaceable  and  law-abiding  of  the 
whole  community. 

"I  embrace  this  opportunity  to  state  for  your  own  information  and 
462 


CHAP.  III.]  CHINA.  [§  67. 

that  of  the  Chiuese  Government,  which  you  worthily  represent,  that  the 
President,  upon  the  receipt  of  the  information  that  in  this  outbreak  of 
mob  violence  the  Chinese  residents  of  Denver  had  been  made  a  special 
object  of  the  hatred  and  violence  of  that  lawless  mob,  felt  as  much  in- 
dignation find  regret  as  could  possibly  be  felt  by  yourself  or  your  Gov- 
ernment, and  I  need  scarcely'  assure  you  that,  in  common  with  my  col- 
leagues in  the  executive  government,  I  shared  fully  in  this  sentiment 
of  the  President. 

"  You  express  in  your  note  the  desire  that  this  Government  shall  ex- 
tend protection  to  the  Chinese  in  Denver,  and  see  that  the  guilty  per- 
sons are  arrested  and  punished;  and  you  add  that  '  it  would  seem  to 
be  just  that  the  owners  of  the  property  wantonly  destroyed  shall  in 
some  way  be  compensated  for  their  losses.' 

"  It  affords  me  pleasure  to  assure  you  that  not  only  in  Denver,  but  in 
every  other  part  of  the  United  States,  the  protection  of  this  Government 
will  always  be,  as  it  always  has  been,  freely  and  full^'  given  to  the  na- 
tives of  China  resident  in  the  country,  in  the  same  manner  and  to  the 
same  extent  as  it  is  afforded  to  our  own  citizens.  As  to  the  arrest  and 
punishment  of  the  guilty  persons  who  composed  the  mob  at  Denver,  I 
need  only  remind  you  that  the  powers  of  direct  intervention  on  the  part 
of  this  Government  are  limited  by  the  Constitution  of  the  United  States. 
Under  the  limitations  of  that  instrument,  the  Government  of  the  Federal 
Union  cannot  interfere  in  regard  to  the  administration  or  execution  of 
the  municipal  laws  of  a  State  of  the- Union,  except  under  cin'-urastances 
expressly  provided  for  in  the  Constitution.  Such  instances  are  confined 
to  the  case  of  a  State  whose  power  is  found  inadequate  to  the  enforce- 
ment of  its  municipal  laws  and  the  maintenance  of  its  sovereign  au- 
thority ;  and  even  then  the  Federal  authority  can  only  be  brought  into 
operation  in  the  particular  State,  in  response  to  a  formal  request  from 
the  proper  political  authority  of  the  State.  It  will  thus  be  perceived 
that  so  far  as  the  arrest  and  punishment  of  the  guilty  parties  may  be 
concerned  it  is  a  matter  which,  in  the  present  aspect  of  the  case,  belongs 
exclusively  to  the  government  and  authorites  of  the  State  of  Colorado. 
In  this  connection  it  is  satisfactory  to  be  able  to  note  with  approval 
the  conduct  of  the  public  authorities  of  Colorado,  and  the  people  of 
Denver,  on  the  unfortunate  occurrence  in  question.  It  was  seen  then, 
as  it  always  is  in  such  outbreaks,  that  the  fury  of  the  brutal  and  lawless 
who  compose  such  mobs  is  ultimately  turned  against  the  weak  and  de- 
fenseless, and  it  is  creditable  alike  to  the  appreciative  sense  of  public 
duty  of  the  authorities  of  Colorado  and  the  humane  instincts  of  the 
citizens  of  Denver,  that  their  first  care  in  this  emergency  (involving  as 
it  did  for  the  moment  the  lives  and  property  of  all  alike)  was  the  pro- 
tection and  safety  of  the  Chinese  residents,  whose  presence  seemed  to 
serve  as  a  special  incitement  to  the  passions  of  the  mob.  And  this 
brings  me  to  the  suggestion  of  your  note,  '  That  the  owners  of  the  prop- 

463 


§  67.]  INTERVENTION.  [CHAP.  III. 

erty  wantonly  destroyed  sliull  in  some  way  be  compensated  for  their 
losses.' 

'•It  seems  superfluons  to  recall  to  your  attention  the  fact,  but  too  well 
attested  by  history,  that  on  occasions,  happily  infrequent,  often  with- 
out motive  in  their  inception,  and  always  without  reason  in  their  work- 
inf;,  lawless  persons  will  baud  together  and  make  up  a  force  in  the 
character  of  a  mob  of  sufficient  i)Ower  and  numerical  strength  to  defy 
for  the  moment  the  denunciations  of  the  law  and  the  power  of  the  local 
authorities.  Such  incidents  are  peculiar  to  no  country.  Neither  the 
United  States  nor  China  are  exempt  from  such  disasters.  In  the  case 
now  under  consideration  it  is  seen  that  the  local  authorities  brought 
into  requisition  all  the  means  at  their  command  for  the  suppression  of 
the  mob,  and  that  these  means  proved  so  effective  that  within  twenty- 
four  hours  regular  and  lawful  authority  was  re-established,  the  mob 
comi)letely  subdued,  and  many  of  the  ringleaders  arrested. 

"  Under  circumstances  of  this  uature  when  the  Government  has  put 
forth  every  legitimate  effort  to  suppress  a  mob  that  threatens  or  at- 
tacks alike  the  safety  and  security  of  its  own  citizens  and  the  foreign 
residents  within  its  borders,  I  kuow  of  no  principle  of  national  obliga- 
tion, and  there  certainly  is  none  arising  from  treaty  stipulation  which 
renders  it  incumbent  on  the  Governmeutof  the  United  States  to  make 
indemnity  to  the  Chinese  residents  of  Denver,  who  in  common  with 
citizens  of  the  United  States,  at  the  time  residents  in  that  city,  suffered 
losses  from  the  operations  of  the  mob.  Whatever  remedies  may  be 
afforded  to  the  citizens  of  Colorado  or  to  the  citizens  of  the  United 
States  from  other  States  of  the  Union  resident  in  Colorado  for  losses 
resulting  from  that  occurrence,  are  equally  open  to  the  Chinese  resi- 
dents of  Denver  who  may  have  suffered  from  the  lawlessness  of  the 
mob.  This  is  all  that  the  principles  of  international  law  and  the 
usages  of  national  comity  demand. 

"  This  view  of  the  subject  supersedes  any  discussion  of  the  extent  or 
true  meaning  of  the  treaty  obligations  on  the  part  of  this  Government 
toward  Chinese  residents,  for  it  proceeds  upon  the  projwsition  that 
these  residents  are  to  receive  the  same  measure  of  protection  and  vin- 
dication under  judicial  and  political  administration  of  their  rights  as 
our  own  citizens. 

"  In  communicating  to  you  the  views  of  this  Government  in  the  i)rem- 
ises,  I  have  pleasure  in  adding  the  assurance  that  it  will  upon  every 
occasion,  so  far  as  it  properly  can,  give  its  continued  attention  to  every 
just  and  ])roper  solicitude  of  the  Chinese  Government  in  behalf  of  its 
subjects  established  here  under  the  hospitality  of  our  treaties." 

Mr.  Evarts,  Sec.  of  State,  to  Chen  Lan  Piu,  Dec.  30,  1880.     MSS.  Notes,  Chiua; 
For.  Eel.,  1681. 

"Referring  to  your  note  of  the  10th  of  November  last,  and  my  prede- 
cessor's reply  thereto  of  the  30th  of  December  following,  on  the  subject 
4G4 


CHAP.  III.]  CHINA.  [§  G7. 

of  the  riot  on  the  31st  of  last  October,  at  Denver,  Colo.,  I  have  now  the 
honor  to  acknowledge  the  receipt  by  the  Department  of  your  notes  of 
the  21st  of  January  and  25th  of  February,  respectively,  in  relation  to 
the  same  matter. 

"I  note  with  satisfaction  the  expressions  of  appreciation  of  the  dis- 
position of  this  Government  toward  that  of  China,  and  the  subjects  of 
China  resident  in  the  United  States,  which  you  so  frankly  avow.  I 
must  express  my  regret,  however,  that  the  views  so  clearly  expressed 
by  my  predecessor  in  regard  to  the  question  of  liability  of  this  Govern- 
ment to  make  pecuniary  indemnity  to  the  Chinese  sufferers  by  the 
occurrences  at  Denver,  failed  to  commend  themselves  to  your  enlight- 
ened judgment.  Concurring,  as  I  do,  in  the  conclusions  thus  reached 
by  Mr.  Evarts,  and  conceiving  the  principle  upon  which  they  rest  to 
be  in  consonance  with  public  law  and  the  universal  practice  of  nations, 
I  must  insist  that  that  j^rinciple  is  the  one  by  which  the  obligations  of 
this  Government  in  regard  to  the  incident  in  question  are  to  be  meas- 
ured. After  recounting  the  efforts  put  forth  by  the  local  authorities 
for  the  suppression  of  the  riots  (efforts  that  happily  proved  successful 
with  only  the  loss  of  one  life,  although  the  mob  numbered  thousands), 
my  predecessor  thus  states  the  rule: 

"  'Under  circumstances  of  this  nature,  when  the  Government  has  put 
forth  every  legitimate  effort  to  suppress  a  mob  that  threatens  or  attacks 
alike  the  safety  and  security  of  its  own  citizens  and  the  foreign  resi- 
dents within  its  borders,  I  know  of  no  principle  of  national  obligation, 
and  there  certainly  is  none  arising  from  treaty  stipulation,  which  ren- 
ders it  incumbent  on  the  Government  of  tbe  United  States  to  make 
indemnity  to  the  Chinese  residents  of  Denver,  who,  in  common  with 
citizens  of  the  United  States  at  that  time  resident  in  that  citj',  suffered 
losses  from  the  operations  of  the  mob.  Whatever  remedies  may  be 
afforded  to  the  citizens  of  Colorado,  or  to  the  citizens  of  the  United 
States  from  other  States  of  the  Union  resident  in  Colorado,  for  losses 
resulting  from  that  occurrence,  are  equally  open  to  the  Chinese  resi 
dents  of  Denver  who  may  have  suffered  from  the  lawlessness  of  that 
mob.  This  is  all  that  the  principles  of  international  law  and  the  usages 
of  national  comity  demand.' 

"You  observe  with  reference  to  these  views,  'that  it  appears  to  you 
that  treaties,  as  well  as  the  Constitution,  are  the  supreme  law  of  this 
land.'  'The  Chinese  residents,' you  add,  'who  were  subjected  to  the 
wanton  outrage  of  the  mob  came  to  this  country  under  the  right  of 
treaties  between  China  and  the  General  Government  of  the  United 
States,' and  quoting  from  the  verdict  of  the  coroner's  jury  at  the  inquest 
over  the  body  of  the  unfortunate  Sing  Lee,  you  ])roceed  to  say  that 
'this  verdict  shows  clearly  that  the  local  authorities  had  not  brought 
into  requisition  all  the  means  for  the  suppression  of  the  mob.'  Invok- 
ing in  support  of  these  views  the  treaty  of  June,  1858,  between  the 
S.  Mis.  162— VOL.  I 30  465 


§  fi7.]  INTERVENTION.  [CHAP.  111. 

United  States  and  China,  you  partially  quote  the  provisions  of  the  first 
article,  the  entire  text  of  which  is  as  follows: 

"'There  shall  be,  as  there  have  always  been,  peace  and  friendship 
between  the  United  States  of  America  and  the  Ta  Tsiug  Empire,  and 
between  their  people  respectively.  They  shall  not  insult  or  oppress 
each  other  for  any  trifling  cause,  so  as  to  produce  an  estrangement 
between  them;  and  if  any  other  nation  should  act  unjustly  or  oppress- 
ively, the  United  States  will  exert  their  good  offices,  on  being  informed 
of  the  case,  to  bring  about  an  amicable  arrangement  of  the  question, 
thus  showing  their  friendly  feelings.' 

"In  submitting  for  your  consideration  such  remarks  as  these  observa- 
tions in  your  note  seem  to  demand,  I  first  bring  to  your  notice  the  pro- 
visions of  the  first  paragraphs  of  Article  XI  of  the  same  treaty.  It 
says: 

"'All  citizens  of  the  United  States  of  America  in  China,  peaceably 
attending  to  their  affairs,  being  placed  on  a  common  footing  of  amity  and 
good-will  with  the  subjects  of  China,  shall  receive  and  enjoy  for  them- 
selves and  everything  appertaining  to  them  the  protection  of  the  local 
authorities  of  Government,  who  shall  defend  them  from  all  insult  or 
injury  of  any  sort.  If  their  dwellings  or  property  be  threatened  or 
attacked  by  mobs,  incendiaries,  or  other  violent  oi  lawless  persons,  the 
local  officers,  on  requisition  of  the  consul,  shall  immediately  dispatch  a 
military  force  to  disperse  the  rioters,  apprehend  the  guilty  individuals, 
and  punish  them  with  the  utmost  rigor  of  the  law.' 

"  You  will  perceive  that  neither  in  this  article  nor  in  any  other  part  of 
the  same  treaty  is  there  any  provision  reciprocal  with  this  with  regard 
to  subjects  of  China  resident  in  the  United  States,  and  the  reason  for 
this  must  at  once  be  obvious  to  your  superior  intelligence.  No  treaty 
r,tipulatious  are  necessary  to  enable  subjects  of  China  to  come  to  this 
country,  take  up  their  residence  here,  and  pursue  any  lawful  business 
or  calling  in  common  wich  the  citizens  or  subjects  of  every  country  in 
the  world  who  may  choose  to  iiuikc  their  home  in  this  Eepublic.  The 
subjects  of  China,  in  respect  to  their  rights  and  security  of  person  and 
property,  are  placed  under  the  protection  of  the  laws  of  the  United 
States  in  manner  and  measure  equal  to  that  extended  to  native  citizens 
of  this  country,  and  that  the  Chinese  residents  of  Denver  at  the  time 
of  the  unfortunate  occurrences  now  in  question  were  in  the  enjoyment 
of  this  common  protection  of  the  law  is  shown  by  the  report  of  the 
Chinese  consul,  Mr.  Bee,  to  you,  a  copy  of  which  accompanies  your 
note.  One  or  two  of  the  local  functionaries  may,  at  first,  in  the  pres- 
ence of  an  enraged  mob  numbering  over  5,000,  have  shown  some  hesi- 
tation and  timidity.  Under  the  circumstances,  it  cannot  be  a  matter 
of  surprise  that  they  were  seized  with  such  feelings,  but,  as  is  seen  by 
the  report  in  question,  the  governor  of  the  State,  the  mayor  of  the  city, 
and  the  sheriff,  acting  in  conjunction  in  the  exercise  of  their  respective 
466 


CHAP,  m.]  CHINA.  [§  fi7. 

powers,  succeeded  in  quelling  this  formidable  riot  ^which  luid  its  incip 
iency  in  a  drinking-house  where  Chinese  and  others  were  engaged  in 
gambling  on  Sunday,  contrary  to  the  laws  of  the  State)  at  2  o'clock  in 
the  afternoon,  within  the  short  space  of  eight  hours,  quiet  and  order 
having  been  comi)letely  restored  by  10  o'clock  of  the  same  night.  A 
more  successful  resistance  to  a  mob  of  such  character  and  numbers  can- 
not be  found  in  the  history  of  any  community  or  country,  and  that  this 
should  have  been  accomplished  without  the  shedding  of  blood  or  a  resort 
to  the  use  of  fire-arms  is  at  once  creditable  to  the  authorities  and  to  the 
popular  respect  for  the  laws. 

"And  it  is  pertinent  to  add  here  that  from  Mr.  Bge's  report,  it  also 
appears  that  amongst  a  number  of  the  ringleaders  who  have  been 
arrested,  two  have  been  identified  as  the  chief  assailants  of  Sing  Lee, 
and  are  now  held  for  trial  for  the  murder. 

"Your  observations  to  the  effect  that  treaties  form  a  part  of  the 
supreme  law  of  this  land  equally  with  the  Constitution  of  the  United 
States  is  evidently  based  on  a  misconception  of  the  true  nature  of  the 
Constitution.  That  instrument,  together  with  all  laws  which  are  made 
in  pursuance  thereof,  and  all  treaties  made  or  which  shall  be  made 
under  the  authority  of  the  United  States,  are  the  supreme  law  of  the 
land.  .  Such  is  the  language  of  the  Constitution,  but  it  must  be  observed 
that  the  treaty,  no  less  than  the  statute  law,  must  be  made  in  conform- 
ity with  the  Constitution,  and  were  a  provision  in  either  a  treaty  or  a 
law  found  to  contravene  the  princii)les  of  the  Constitution,  such  pro 
vision  must  give  way  to  the  superior  force  of  the  Constitution,  which  is 
the  organic  law  of  the  Republic,  binding  alike  on  the  Government  and 
the  nation.  It  is  under  this  interpretation  of  the  Constitution  that  for- 
eigners, no  less  than  citizens,  find  their  best  guarantee  for  that  security 
and  protection  in  their  persons  and  property  which  it  is  the  aim  and 
desire  of  the  Government  of  the  United  States  to  extend  to  all  alike. 

"Having  thus  replied  to  the  several  observations  and  suggestions 
submi  tted  in  your  note,  I  venture  to  express  the  hope  entertained  by 
this  Government  that  the  determination  thus  reached  after  mature  con- 
sideration, will  be  accepted  by  that  of  China  as  the  final  conclusion  of 
the  subject." 

Mr.  Blaino,  Sec.  of  State,  to  Chen  Lan  Pin,  Mar.  25, 1881.     MSS.  Notes,  China ; 

For.  Rel.,  1881. 
As  to  injuries  from  mob  violence,  see  ivfra,  ^  22(i. 

The  United  States  would  view  in  an  unfriendly  light  any  action  by 
China  giving  exclusive  telegraphic  privileges  to  any  other  foreign 
nation. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Holcombe,  Dec.  10,  1881.     MSS.  lust.,  China. 

The  Government  of  the  United  States,  on  application  from  the  min- 
ister of  China,  will  call  upon  the  governors  of  States  in  which  there 

467 


§  67.J  INTERVENTION.  [CHAP.  III. 

have  beeu  alleged  outrages   on  Chinese  to  investigate  such   allega- 
tions. 

Mr.  Frelinghuyseu,  Sec.  of  State,  to  the  Governor  of  California,  June  20,  1882. 

MSS.  Dom.  Let. 
As  to  right  by  Chinese  laborerH  of  transit  over  the  United  States,  see  letter  of 
Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Folger,  Jan.  9,  1883.     MSS.  Dom. 
Let. 

"  The  attitude  of  the  United  States  towards  China,  as  towards  the 
other  countries  of  Eastern  Asia,  has  been  consistently  a  friendly  one. 
We  have  not  attenii)ted  to  impose  our  views  upon  them  by  force,  but 
have  preferred  to  trust  to  frank  and  friendly  argument,  limiting  our 
demand  to  what  we  might  with  justice  ask,  and,  supporting  them  with 
frank  argument  and  appeals  to  the  sense  of  justice  of  the  Imperial 
Government;  we  have  been  met  in  a  like  amicable  spirit,  and  it  is  be- 
lieved that  the  result  has  been  for  the  advantages  of  both  the  nations. 
As  a  result  of  this  policy,  citizens  of  the  United  States  have  estab- 
lished themselves  in  the  open  ports  of  China,  have  there  engaged  in 
legitimate  and  useful  occupations,  benefiting  China  no  less  than  them- 
selves, and  the  United  States  have  there  invested  their  capital  and  the 
fruits  of  their  labor,  and  have  done  all  this  under  the  express  protec- 
tion of  wise  treaty  i)rovisions  binding  upon  the  Imperial  Government 
and  all  Chinese  officials.  The  United  States  cannot  assent  at  this  late 
day  to  a  return  to  the  aucient  exclusive  system,  which  will  involve 
destruction  of  the  property  of  their  citizens  and  abrogation  of  their 
vested  rights." 

Mr.  Frelinghuyseu,   Sec.  of  State,  to  Mr.  Young,  Feb.  26,  1883.     MSS.  Inst., 
China. 

The  appointment  of  missionaries  by  our  Government  to  official  rep- 
resentative positions  in  China  is  "  a  question  to  be  treated  with  great 
care,  not  less  for  their  own  protection  and  that  of  their  colleagues,  than 
for  the  interests  of  the  public  service." 

Mr.  Frelinghuysen,  Sec.   of  State,  to  Mr.  Young,  Mar.  8.  1883.     MSS.  Inst., 
China. 

The  Department  of  State  will  take  all  steps  necessary  to  comply  with 
the  third  article  of  the  Chinese  immigration  treaty  in  so  far  as  it  con- 
strains this  Government  to  "exert  all  its  power  to  devise  measures  for 
the  protection  of  any  Chinese  who  suffer  ill-treatment,  and  secure  to 
them  the  lull  enjoyment  of  their"  rights. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  the  Governor  of  Georgia,  M.ar.  12,  1883. 
MSS.  Dom.  Let. 

"  Questions  have  arisen  touching  the  rights  of  American  and  other 
foreign  manufacturers  in  China  under  the  provisions  of  treaties  which 
permit  aliens  to  exercise  their  industries  in  that  country.  On  this  spe- 
cific point  our  own  treaty  is  silent,  but  under  the  operation  of  the  most- 
favored-nation  clause,  wo  have  like  privileges  with  those  of  other  pow- 
468 


CHAT.  III.]  CHINA.  [§  67. 

ers.  While  it  is  the  duty  of  the  Government  to  see  that  our  citizens 
have  the  full  enjoyment  of  every  benefit  secured  by  treaty,  I  doubt  the 
expediency  of  leading  in  a  movement  to  constrain  China  to  admit  an 
interpretation  which  we  have  only  an  indirect  treaty  right  to  exact. 
The  transference  to  China  of  American  capital  for  the  employment 
there  of  Chinese  labor  would  in  effect  inaugurate  a  com))etiti()n  for  the 
control  of  markets  now  supplied  by  onr  home  industries. 

"There  is  good  reason  to  believe  that  the  law  restricting  the  immi- 
gration of  Chinese  has  been  violated,  intentionally  or  otherwise,  by  the 
officials  of  China  upon  whom  is  devolved  the  duty  of  certifying  that  the 
immigrants  belong  to  the  excepted  classes. 

"  Measures  have  been  taken  to  ascertain  the  facts  incident  to  this 
supposed  infraction,  and  it  is  believed  that  the  Government  of  China 
will  co-operate  with  the  United  States  in  securing  the  faithful  observ- 
ance of  the  law." 

President  Arthur.  Third  Annual  Message,  1883. 

Neither  France  nor  China  has  the  right  arbitrarily  to  close  the 
Chinese  treaty  ports,  though  this  may  be  <lone  by  China  for  necessary 
defense. 

Mr.   Frelinghiiysen,  Sec.  of  State,  to  Mr.   Yonnti,  Jan.  2'2,  1884.     MSS.  Inst., 
Cliiua. 

A  United  States  consul  in  China  is  required,  within  the  range  of  his 
duties,  to  obey  the  official  order  of  the  minister  of  the  United  States  in 
China.  If  this  order  is  reversed  by  the  Department  of  State,  the  re- 
versal is  communicated  through  the  minister,  until  which  time  the  order 
binds. 

Ml-.   Frelinghnysen,  Sec.   of  State,  to  Mr.   Young,  Feb.  6,  1884.     MSS.  Inst., 
China. 

"  The  i)urpose  of  the  neutral  powers  is  ])rimarily  the  protection  ot 
their  own  interests  at  the  several  treaty  ports.  The  foreign  settlements 
at  the  open  ports  are  singularly  abnormal  growths.  Under  no  one 
flag,  they  are  under  the  i)rotection  of  all.  In  whatever  concerns  their 
trade,  their  shipping,  and  their  vested  interests,  rhey  are  distinctively 
foreign  to  the  administrative  system  of  China. 

"  Hence,  as  you  have  lately  learned,  when  the  pos.sible  closing  of 
Canton  by  the  Chinese  as  a  measure  of  protection  against  threatened 
French  aggression  was  seriously  contemplated,  the  other  treaty  powers 
felt  justified  in  expecting  of  France  a  formal  declaration  of  purpose  not 
to  attack  Canton.  The  view  of  the  United  States,  as  expressed  to  Great 
Britain,  was  that  neither  China  nor  France  had  the  right  to  close  the 
treaty  ports,  but  that  if  they  should  be  attacked  by  France,  China  could 
not  be  denied  a  right  of  defense,  to  be  availed  of  in  any  manner  legiti 
mate  to  a  state  of  war.'' 

Mr.   Frelinghuyseii,   Sec.   of  State,  to  Mr.  Young,  Mar.  21,  ie~4.     MSS.  Inst., 

China. 
As  to  treaty  with  China,  see  infra,  ^  144. 

469 


J  67.]  INTERVENTION.  [CHAP.  III. 

<'  The  obligatiou  of  a  neutral  Government  to  prevent  its  citizens  from 
joining  in  hostile  movements  against  a  foreign  state  is  limited  by  the 
extent  to  which  such  citizens  are  under  its  jurisdiction  and  by  the  mu- 
nicipal laws  applicable  to  their  actions.  Hence,  a  citizen  outside  of  such 
jurisdiction  may  not  be  controlled  in  his  free  acts ;  but  what  he  does 
is  at  his  own  risk  and  peril.  If  he  offers  his  services  to  a  combatant, 
that  is  a  matter  of  private  contract,  which  it  may  be  equally  improper 
for  his  own  Government  to  forbid  or  protect ;  and  such  service  in  legit 
imate  war  is  not  contrary  to  international  law. 

"  In  China,  however,  foreign  powers  have  an  extraterritorial  juris- 
diction conferred  by  treaty.  This  jurisdiction  is  in  nowise  arbitrary, 
but  is  limited  by  laws,  and  is  not  preventive  but  punitory.  If  a  citizen 
of  the  United  States  in  China  commit  an  offense  against  the  peace  of 
China,  it  is  triable  in  the  consular  courts.  Section  4102  of  the  Ee- 
vised  Statutes  provides  that '  insurrection  or  rebellion  against  the  Gov- 
ernment of  either  of  those  countries  [*.  c,  the  countries  named  in  sec- 
tion 4083,  whereof  China  is  one],  with  intent  to  subvert  the  same,  and 
murder,  shall  be  capital  offenses  punishable  with  death,'  &c.,  the  con- 
sular court  and  the  minister  to  concur  in  awarding  the  penalty.  But 
the  simple  act  of  entering  into  a  private  contract  to  serve  either  com- 
batant in  open  warfare  would  not  appear  to  be  triable  under  this  sec- 
tion ;  and,  even  if  it  were,  this  Government  would  have  no  rightful 
power  to  forbid  such  service." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Young,  Mar.  11,  1885.    MSS.  Inst.,  China. 
As  to  local  passports  in  China,  see  Mr.  Frelinghuysen,  Sec.  of  StatCy  to  Mr. 
Young,  Aug.  8,  1884,  aad  Jan.  19,  1885.     MSS.  Inst.,  China,  cited  infra, 
*  193  ff. 

"  It  is  made  the  constitutional  duty  of  the  President  to  recommend 
to  the  consideration  of  the  Congress,  from  time  to  time,  such  measures 
as  he  shall  judge  necessary  and  expedient.  In  no  matters  can  the  neces- 
sity of  this  be  more  evident  than  when  the  good  faith  of  the  United 
States  under  the  solemn  obligation  of  treaties  with  foreign  powers  is 
concerned. 

"  The  question  of  the  treatment  of  the  subjects  of  China  sojourning 
within  the  jurisdiction  of  the  United  States  presents  such  a  matter  for 
the  urgent  and  earnest  consideration  of  the  Executive  and  the  Con- 
gress. 

"  In  my  first  annual  message,  upon  the  assembling  of  the  present 
Congress,  I  adverted  to  this  question  in  the  following  words : 

"  '  The  harmony  of  our  relations  with  China  is  fully  sustained. 

"  '  In  the  application  of  the  acts  lately  passed  to  execute  the  treaty  of 
1880,  restrictive  of  the  immigration  of  Chinese  laborers  into  the  United 
States,  individual  cases  of  hardship  have  occurred  beyond  the  power  of 
the  Executive  to  remedy,  and  calling  for  judicial  determination. 

" '  The  condition  ©f  the  Chinese  questio»  in  the  Western  States  and 
470 


CHAP.  III.]  CHINA.  [§  67. 

Territories  is,  despite  this  restrictive  legislation,  far  from  being  satis- 
factory. The  recent  outbreak  in  Wyoming  Territory,  where  numbers 
of  unoffending  Chinamen,  indisputably  within  the  protection  of  the 
treaties  and  the  law,  were  murdered  by  a  mob,  and  the  still  more  recent 
threatened  outbreak  of  the  same  character  in  Washington  Territory, 
are  fresh  in  the  minds  of  all,  and  there  is  apprehension  lest  tlie  bitter- 
ness of  feeling  against  the  Mongolian  race  on  the  Pacific  slope  may  find 
vent  in  similar  lawless  demonstrations. 

"  'All  the  power  of  this  Government  should  be  exerted  to  maintain  the 
amplest  good  faith  toward  China  in  the  treatment  of  these  men,  and  the 
inflexible  sternness  of  the  law  in  bringing  the  wrongdoers  to  justice 
should  be  insisted  upon. 

"  'Every  effort  has  been  made  by  this  Government  to  prevent  these 
violent  outbreaks,  and  to  aid  the  representatives  of  China  in  their  in- 
vestigation of  these  outrages ;  and  it  is  but  just  to  say  that  they  are 
traceable  to  the  lawlessness  of  men  not  citizens  of  the  United  States 
engaged  in  competition  with  Chinese  laborers, 

"'Race  prejudice  is  the  chief  factor  in  originating  these  disturbances, 
and  it  exists  in  a  large  part  of  onr  domain,  jeopardizing  our  domestic 
peace  and  the  good  relationship  we  strive  to  maintain  with  China. 

" '  The  admitted  right  of  a  Government  to  prevent  the  influx  of  ele 
ments  hostile  to  its  internal  peace  and  security  may  not  be  questioned, 
even  where  there  is  no  treaty  stipulation  on  the  subject.  That  the  ex- 
clusion of  Chinese  labor  is  demanded  in  other  countries  where  like  con- 
ditions prevail  is  strongly  evident  in  the  Dominion  of  Canada,  where 
Chinese  immigration  is  now  regulated  by  laws  more  exclusive  than  our 
own.  If  existing  laws  are  inadequate  to  compass  the  end  in  view,  1 
shall  be  prepared  to  give  earnest  consideration  to  any  further  remedial 
measures  within  the  treaty  limits  which  the  wisdom  of  Congress  may 
devise.' 

"At  the  time  I  wrote  this  the  shocking  occurrences  at  Rock  Springs, 
in  Wyoming  Territory,  were  fresh  in  the  minds  of  all,  and  had  been 
recently  presented  anew  to  the  attention  of  this  Government  by  the 
Chinese  minister  in  a  note,  which,  while  not  unnaturally  exhibiting 
some  misconception  of  our  Federal  system  of  administration  in  the 
Territories  while  they  as  yet  are  not  in  the  exercise  of  the  full  meas- 
ure of  that  sovereign  self-government  pertaining  to  the  States  of  the 
Union,  presents  in  truthful  terms  the  main  features  of  the  cruel  out- 
rages there  perpetrated  upon  inoffensive  subjects  of  China.  In  the 
investigation  of  the  Rock  Springs  outbreak  and  the  ascertainment  of 
the  facts  on  which  the  Chinese  minister's  statements  rest,  the  Chinese 
representatives  were  aided  by  the  agents  of  the  United  States,  and 
the  reports  submitted,  having  been  thus  framed  and  recounting  facts 
within  the  knowledge  of  witnesses  on  both  sides,  possess  an  impartial 
truthfulness  which  could  not  fail  to  give  them  great  impressiveaess. 

471 


§  67.]  INTERVENTION.  [CHAP.  III. 

"The  facts,  which  so  far  are  not  controverted  or  affected  by  any  ex- 
culpatory or  mitigating  testimony,  show  the  murder  of  a  number  of 
Chinese  subjects  in  Sej^tember  last,  at  Eock  Springs,  the  wounding  of 
many  others,  and  the  spoliation  of  the  property  of  all  when  the  unhappy 
survivors  had  been  driven  from  their  habitations.  There  is  no  allega- 
tion that  the  victims,  by  any  lawless  or  disorderly  act  on  their  part, 
contributed  to  bring  about  a  collision.  On  the  contrary,  it  appears  that 
the  law-abiding  disposition  of  these  ])eople,  who  were  sojourners  in  our 
midst  under  the  sanction  of  hospitality  and  express  treaty  obligations, 
was  made  the  pretext  for  the  attack  upon  them.  This  outrage  upon 
law  and  treaty  engagements  was  committed  by  a  lawless  mob.  None 
of  the  aggressors,  happily  for  the  national  good  fame,  appear  by  the 
reports  to  have  been  citizens  of  the  United  States.  They  were  aliens, 
engaged  in  that  remote  district  as  mining  laborers,  who  became  excited 
against  the  Chinese  laborers,  as  it  would  seem,  because  of  their  refusal 
to  join  them  in  a  strike  to  secure  higher  wages.  The  opi)ression  of 
Chinese  subjects  by  their  rivals  in  the  competition  for  labor  does  not 
differ  in  violence  and  illegality  from  that  applied  to  other  classes  of 
native  or  alien  labor.  All  are  equally  under  the  protection  of  law,  and 
equally  entitled  to  enjoy  the  benefits  of  assured  public  order. 

"Were  there  no  treaty  in  existence  referring  to  the  rights  of  Chinese 
subjects,  did  tbey  come  hither  as  all  other  strangers  who  voluntarily 
resort  to  this  laud  of  freedom,  of  self-government,  and  of  laws,  here 
peaceably  to  win  their  bread  and  to  live  their  lives,  there  can  be  no 
question  that  they  would  be  entitled  still  to  the  same  measure  of  pro- 
tection from  violence,  and  the  same  free  forum  for  tlie  redress  of  their 
grievances  as  any  other  aliens. 

"  So  far  as  the  treaties  between  the  United  States  and  China  stipu 
late  for  the  treatment  of  the  Chinese  subjects  actually  in  the  United 
States  as  the  citizens  or  subjects  of '  the  most  favored  nation '  are  treated, 
they  create  no  new  status  for  them  ;  they  simply  recognize  and  confirm 
a  general  and  existing  rule,  aijplicable  to  all  aliens  alike,  for  none  are 
favored  above  others  by  domestic  law,  and  none  by  foreign  treaties 
unless  it  be  the  Chinese  themselves  in  some  respects.  For,  by  the  third 
article  of  the  treaty  of  ]S^ovember  17,  1880,  between  the  United  States 
and  China,  it  is  provided  that : 

"  'Article  III. 

"  '  If  Chinese  laborers,  or  Chinese  of  any  other  class,  now  either  per- 
manently or  temporarily  residing  in  the  territory  of  the  United  States, 
meet  with  ill  treatment  at  the  hands  of  any  other  persons,  the  Govern- 
ment of  the  United  States  will  exert  all  its  power  to  devise  measures 
for  their  protection,  and  to  secure  to  them  the  same  rights,  privileges, 
immunities,  and  exemptions  as  may  be  enjoyed  by  the  citizens  or  sub- 
jects of  the  most  favored  nation,  and  to  which  they  are  entitled  by 
treats.* 

472 


CHAP.  III.]  CHINA.  [§  67- 

"  This  article  may  be  held  to  constitute  a  special  privilege  for  Chinese 
subjects  in  the  United  States  as  compared  with  othei'  aliens,  not  that 
it  creates  anj'  peculiar  rights  which  others  do  not  share,  but  because  in 
case  of  ill  treatment  of  the  Chinese  in  the  United  States  this  Govern- 
ment is  bound  to  'exert  all  its  power  to  devise  measures  for  their  pro- 
tection' by  securing  to  them  the  rights  to  which,  equally  with  any  and 
all  foreigners,  they  are  entitled. 

"Whether  it  is  now  incumbent  upon  the  United  States  to  amend  their 
general  laws  or  devise  new  measures  in  this  regard,  1  do  not  consider 
in  the  present  communication,  but  confine  myself  to  the  particular  point 
raised  by  the  outrage  and  massacre  at  Rock  Springs. 

"  The  note  of  the  Chinese  minister,  and  the  documents  which  accom- 
pany it,  give,  as  I  believe,  an  unexaggerated  statement  of  the  lamenta- 
ble incident,  and  present  impressively  the  regrettable  circumstance  that 
the  proceedings,  in  the  name  of  justice,  for  the  ascertainment  of  the 
crime  and  fixing  the  responsibility  therefor  were  a  ghastly  mockery  of 
iustice.  So  long  as  the  Chinese  minister,  under  his  instructions,  makes 
this  the  basis  of  an  ai)peal  to  the  principles  and  convictions  of  mankind, 
no  exception  can  be  taken  ;  but  when  he  goes  further,  and,  taking  as  his 
precedent  the  action  of  the  Chinese  Government  in  past  instances  where 
the  lives  of  American  citizens  and  their  property  in  China  have  been 
endangered,  argues  a  reciprocal  obligation  on  the  part  of  the  United 
States  to  indemnify  the  Chinese  subjects  who  suffered  at  Eock  Springs, 
it  becomes  necessary  to  meet  his  argument  and  to  deny,  most  emphat- 
ically, the  conclusions  he  seeks  to  draw  as  to  the  existence  of  such  a 
liability,  and  the  right  of  the  Chinese  Government  to  insist  upon  it. 

"  I  draw  the  attention  of  the  Congress  to  the  latter  part  of  the  note  of 
the  Secretary  of  State  of  February  18,  188G,  in  reply  to  the  Chinese 
minister's  representations,  and  to  invite  especial  consideration  of  the 
cogent  reasons  by  which  he  reaches  the  conclusion  that,  whilst  the  LTnited 
States  Government  is  under  no  obligation,  whether  by  the  express  terms 
of  its  treaties  with  China  or  the  principles  of  international  law,  to  in- 
demnify these  Chinese  subjects  for  losses  caused  by  such  means  and 
under  the  admitted  circumstances,  yet  that  in  view  of  the  palpable  and 
discreditable  failure  of  the  authorities  of  Wyoming  Territory  to  bring 
to  justice  the  guilty  parties  or  to  assure  to  the  sufferers  an  impartial 
forum  in  which  to  seek  and  obtain  compensation  for  the  losses  which 
those  subjects  have  incurred  by  a  lack  of  police  protection,  and  consid- 
ering further  the  entire  absence  of  provocation  or  contribution  on  the 
part  of  the  victims,  the  Executive  may  bejnduced  to  bring  the  matter 
to  the  benevolent  consideration  of  the  Congress,  in  order  that  that  body, 
in  its  high  discretion,  may  direct  the  bounty  of  the  Government  in  aid 
of  innocent  and  peaceful  strangers  whose  maltreatment  has  brought 
discredit  upon  the  country,  with  the  distinct  understanding  that  such 
action  is  in  nowise  to  be  held  as  a  precedent,  is  wholly  gratuitous,  and 

473 


§  67.]  INTERVENTION.  [CHAP.  III. 

is  resorted  to  in  the  spirit  of  pure  generosity  toward  those  who  are  other- 
wise helpless." 

President  Cleveland,  Special  Message  of  Mar.  2,  1886. 

"  I  have  the  houor  to  acknowledge  the  receipt  of  the  very  interestiuij 
and  important  communication  which  you  addressed  to  me  on  the  30th 
of  November  last,  touching  the  treatment  of  Chinese  subjects  in  the 
United  States. 

"  The  subject  to  which  your  note  relates  has  already  received  the 
most  earnest  and  careful  consideration  of  the  President,  in  whose  annual 
message  to  the  houses  of  Con<*ress  in  December  last  you  cannot  have 
failed  to  note  very  impressive  recommendations  fully  recognizing  the 
responsibility  of  this  Government  to  observe,  in  letter  and  in  spirit,  the 
duties  of  benignity  and  frieudshii)  to  which  your  note  refers,  as  set  forth 
in  the  treaties  of  1868  and  1880,  between  the  United  States  and  China. 
And,  although  my  formal  reply  to  your  note  has  been  somewhat  delayed, 
owing  to  causes  beyond  my  control  and  in  part  painfully  personal  to 
myself,  you  will  doubtless  have  observed,  or  at  least  conjectured,  the 
influence  of  your  communication  in  the  following  reference  of  the  Presi- 
dent to  the  condition  and  treatment  of  Chinese  subjects  resorting  to 
this  country : 

"  'In  the  application  of  the  acts  lately  passed  to  execute  the  treaty  of 
1880,  restrictive  of  the  immigration  of  Chinese  laborers  into  the  United 
States,  individual  cases  of  hardship  have  occurred  beyond  the  power  of 
the  Executive  to  remedy,  and  calling  for  judicial  determination. 

" '  The  condition  of  the  Chinese  question  in  the  Western  States  and 
Territories  is,  despite  this  restrictive  legislation ,  far  from  being  satis- 
factory. The  recent  outbreak  in  Wyoming  Territory,  where  numbers 
of  unotfending  Chinamen,  indisputably  within  the  protection  of  the 
treaties  and  the  law,  were  murdered  by  a  mob,  and  the  still  more  recent 
threatened  outbreak  of  the  same  character  in  Washington  Territory,  are 
fresh  in  the  minds  of  all,  and  there  is  apprehension  lest  the  bitterness 
of  feeling  against  the  Mongolian  race  on  the  Pacific  slope  may  find  vent 
in  similar  lawless  demonstrations.  All  the  power  of  this  Government 
should  be  exerted  to  maintain  the  amplest  good  faith  toward  China  in 
the  treatment  of  these  men ;  and  the  inflexible  sternness  of  the  law  in 
bringing  the  wrong-doer  to  justice  should  be  insisted  upon. 

"'Every  eflort  has  been  made  by  this  Government  to  prevent  these 
violent  outbreaks  and  to  aid  the  representatives  of  China  in  their  inves- 
tigation of  these  outrages ;  and  it  is  but  just  to  say  that  they  are  trace- 
able to  the  lawlessness  of  men  not  citizens  of  the  United  States  engaged 
in  competition  with  Chinese  laborers. 

"  'Eace  prejudice  is  the  chief  factor  in  originating  these  disturbances, 
and  it  exists  in  a  large  part  of  our  domain,  jeopardizing  our  domestic 
peace  and  the  good  relationship  we  strive  to  maintain  with  China.' 

"  The  President's  unambiguous  and  frank  declarations  stated  have 
474 


CHAP,  m.]  CHINA.  [§  67. 

anticipated,  for  the  most  part,  the  tenor  of  my  delayed  reply  to  your 
note. 

"  You  and  your  Government  are  so  well  aware  of  the  sincerity  with 
which  this  Government  professes  its  desire  and  intention  to  carry  out 
in  the  fullest  good  faith  all  obligations  springing  from  international 
comity  and  inspired  by  the  especial  amity  which  finds  expression  in 
the  several  treaties  between  the  United  States  and  Chiuii,  that  it  may, 
perhaps,  be  superfluous  for  me  to  reiterate  assurances  of  our  sorrow  and 
abhorrence  caused  by  the  lawless  and  cruel  outrages  of  which  so  many 
of  your  countrymen  were  unhappily  made  the  victims  in  September  last 
at  Eock  Springs,  in  the  Territory  of  Wyoming,  and  which  have  been 
fully  and  truthfully  recited  in  your  note  and  in  the  accompanying  docu- 
ments. 

"  Let  me  assure  you,  however,  that  I  but  speak  the  voice  of  honest 
and  true  American  citizens  throughout  this  country,  and  of  the  Govern- 
ment founded  on  their  will,  when  I  denounce  with  feeling  and  indigna- 
tion the  bloody-  outrages  and  shocking  wrongs  which  were  there  inflicted 
upon  a  body  of  your  countrymen.  There  is  nothing  to  extenuate  such 
offenses  against  humanity  and  law,  and  not  the  least  of  the  outrages 
upon  the  good  name  of  the  law  was  the  wretched  travesty  of  the  forms 
of  justice  by  a  certain  local  officer,  acting  as  coroner,  and  pretending 
to  give  a  legal  account  of  the  manner  in  which  the  victims  met  their 
death. 

"  It  appears  from  your  statements  and  the  reports  transmitted  in  sup- 
port thereof — the  accuracy  of  which  I  do  not  question — that  twenty- 
eight  of  your  countrymen  were  killed  outright  at  Eock  Springs,  fifteen 
were  wounded,  and  many  more  driven  from  their  homes,  while  the  prop- 
erty of  Chinese  subjects  to  the  value  of  ui)wards  of  $147,000  was  either 
destroyed  or  pillaged  by  the  rioters. 

"  My  sense  of  humanity  is  no  less  aroused  than  yours  to  strong  feel- 
ings of  indignation  and  commiseration]  but,  besides  this  common  senti- 
ment, I  feel  with  equal  poignancy  deep  mortification  that  such  a  blot 
should  have  been  cast  upon  the  record  of  our  Government  of  laws. 

"  To  aid  in  weighing  the  responsibility  for  these  occurrences  and  to 
attain  a  clearer  comprehension  of  the  wrong,  its  origin,  its  progress,  and 
its  proper  remedies,  I  will  ask  your  attention  to  a  few  of  the  main  ad- 
mitted facts,  as  stated  by  yourself  and  as  disclosed  by  the  investigation, 
in  which,  as  you  justly  say,  your  official  agents  were  importantly  assisted 
by  the  presence  of  officers  of  the  United  States  Army  specially  assigned 
for  that  purpose. 

"  The  region  in  which  this  outbreak  occurred  is  not  within  the  borders 
of  any  State  of  the  United  States,  but  is  within  the  limits  of  Wyoming 
Territory.  You  make  the  point  that  this  Territory  is  directly  under  the 
control  of  the  Federal  Government,  and  that  the  acts  of  Territorial  offi- 
cers are  in  that  degree  those  of  the  United  States  in  the  national  capac- 
ity, not  those  of  a  distinct  sovereignty.     In  this  you  approximately  state 

476 


§  67.]  INTERVENTION.  [CHAP.  III. 

a  broad  proposition,  but  do  not  accurately  give  it  specific  application. 
By  its  enabling  and  organic  law  the  Territory  of  Wyoming  enjoys  local 
self-government,  with  a  full  equipment  of  officials  in  every  branch  known 
to  our  republican  forms,  who  are  invested  with  full  authority  to  main- 
tain law  and  order  and  administer  justice  to  all  iiihal)itants.  This  Ter- 
ritorial government  contains  the  usual  framework  of  the  other  republics 
which  combine  to  form  this  Union.  It  comprises  an  executive,  a  legis- 
lative, and  a  judicial  branch.  In  the  centers  of  population  this  govern- 
ment is  as  competent  to  discharge  its  administrative  obligations  as  is 
the  government  of  any  State,  and  is  responsible  in  the  same  way.  Re- 
cent occurrences  at  Seattle,  in  the  Territory  of  Washington,  show  this. 
Blood  has  been  shed  there  lately  under  the  authority  of  Territorial  offi- 
cials in  successful  defense  and  assertion  of  the  right  of  certiain  of  your 
countrymen  to  peaceable  and  law-observant  residence. 

''  The  scene  of  the  lamentable  occurrences  at  Rock  Springs  was,  how- 
ever, remote  from  any  center  of  population,  and  was  marked  by  all  the 
customary  features  of  a  newly  and  scantily  settled  locality.  It  con- 
sisted of  a  scattered  assemblage  of  dwellings  near  a  railway  station  and 
in  the  vicinity  of  some  coal  mines.  The  population  was  made  up  of 
men  of  all  races,  migratory  in  their  habits ;  some  engaged  as  laborers 
in  mining,  while  others  were  employed  in  furnishing  their  supplies.  Of 
formal  recognized  authority  there  were  few  rei)resentatives,  and  little 
or  no  attempt  at  organized  police.  It  was,  in  short,  a  rude  commence- 
ment of  a  community  on  the  outposts  of  civilization,  and,  like  all  such 
beginnings,  largely  dependent  for  stability  and  order  on  the  congruity 
of  the  elements  of  which  it  was  composed. 

"  To  this  remote  and  unprotected  region  your  countrymen  voluntarily 
resorted  in  large  numbers.  The  attack  upon  them,  as  your  note  truly 
states,  was  made  suddenly  by  a  lawless  band  of  about  one  hundred  and 
fifty  armed  men,  who  had  given  no  previous  intimation  of  their  criminal 
intent.  These  men  were  discontented  mining  laborers,  who  had  pre- 
viously sought  to  induce  the  Chinese  to  join  with  them  in  a  concerted 
strike  for  higher  wages,  and  their  overtures  being  rejected,  they  became 
angered  on  that  account.  This,  I  believe,  is  the  only  motive  for  the 
assault  discernible  and  alleged  in  the  reported  evidence. 

"On  neither  side,  among  assailants  or  assailed,  was  there  any  repre- 
sentative of  the  Government  of  China  or  of  the  United  States  or  of  the 
Territory  of  Wyoming.  There  was,  therefore,  as  there  could  be,  no  offi- 
cial insult  or  wrong.  Wbatever  occurre  d  was  between  private  individu- 
als wholly  devoid  of  official  character.  It  was,  moreover,  absolutely' 
without  national  character.  The  domestic  element  of  an  ordinary  civil 
disturbance  was  wanting.  The  assailants,  equally  with  the  assailed, 
were  strangers  in  our  land.  In  strict  truth,  the  hospitality  of  a  friendly 
country,  no  less  than  the  rights  of  peaceful  sojourners  therein,  may  be 
said  to  have  been  outraged  by  a  body  of  aliens,  who,  being  permitted 
by  the  generosity  of  our  laws  to  enter  our  borders  and  roam  unchecked 
476 


CHAP.  III.]  CHINA.  [§67. 

and  at  will  throughout  its  jurisdiction,  freely  and  profitably  selecting 
their  jilaces  of  abode  and  finding  occupation  therein,  have  abused  the 
j)rivileges  thus  accorded  to  them  and  committed  gross  breaches  of  the 
public  peace,  suddenly  and  doubtless  with  the  knowledge  that  nowhere 
within  summons  could  any  police  organization  be  found  in  sufficient 
force  to  staj'  their  criminal  hands. 

"As  you  are  aware,  in  the  States  of  the  Union,  and  also  in  the  organ- 
ized Territories,  and  in  the  District  of  Columbia,  where  the  Government 
of  the  nation  has  its  Federal  seat,  the  conservation  of  the  public  peace 
is  committed  to  the  local  authorities,  and  crimes  of  violence  involving 
the  lives  and  safety  of  the  property  of  individuals  are  held  to  be  in  vio- 
lation of  the  peace,  and  in  derogation  of  the  local  laws  and  jurisdiction 
This  violation  constitutes  the  criminality  which  the  police  of  the  com- 
munity seeks  to  prevent  by  all  rational  precautions,  and  which  the  law 
is  intended  to  punish. 

"  Violent  assaults  and  homicides  in  all  newly-settled  countries  are 
very  frequent  and  in  proportion  as  the  social  elements  are  incongruous 
and  the  organization  of  the  police  and  judiciary  is  inchoate  and  imper- 
fect. 

"  The  Government  of  the  United  States,  opening  its  vast  domain  so 
freely  to  actual  settlers,  has  extended  the  scope  and  power  of  the  Con- 
stitution and  laws  over  the  Territories,  by  confiding  to  their  local  legis- 
latures and  government  the  duty  and  power  of  maintaining  order,  pre- 
serving the  public  peace,  and  punishing  infractions  thereof.  In  this 
respect  the  local  authority  and  responsibility  is  in  practice  as  self-con- 
tained in  a  Territory-  as  in  a  State. 

"  Moreover,  this  local  authority  and  responsibility  is  applied  to  and 
affects  all  inhabitants  alike.  Before  the  law,  alien  and  native  are  equal. 
Your  note,  however,  intimated  rather  than  argues,  the  existence  of 
special  and  peculiar  responsibility  in  respect  of  the  Chinese  in  our 
midst.  By  argument  and  analogy  you  seek  to  show  that  a  singular 
and  exceptional  obligation  rests  upon  the  United  States  toward  China- 
men, correspondent  and  reciprocal  to  the  contractual  obligations  of 
China  in  respect  of  citizens  of  the  United  States  resorting  tliither. 

"An  examination  of  the  treaty  stipulations  becomes,  therefore,  most 
important  towards  an  understanding  of  this  question  as  stated  by  you. 
I  am,  of  course,  not  unaware  that  your  argument  is  essentially  a^  ho7n- 
inem;  that  it  appeals  to  the  sense  of  justice  and  fair  play  innate  in 
the  human  breast;  that  it  alleges  that  the  golden  rule  'to  do  to  others 
as  they  would  have  others  do  to  them '  is  recited  approvingly  in  Article 
XXIX  of  the  treaty  of  1858  between  the  two  nations ;  and  that  it 
advances  the  assumption  that  'if  the  view'  heretofore  taken  in  an 
analogous  case,  'as  to  the  obligations  of  the  United  States  to  make 
indemnity  for  injuries  to  private  individuals  from  mob  violence,  should 
be  insisted  upon  and  adhered  to  by'  the  United  States,  '  China  should, 
in  due  reciprociti/  and  international  comity,  accept  and  practice  the  mmc 

477 


§  67.]  INTERVENTION.  [CHAP.  III. 

principle.^  But,  before  this  ad  hominem  argument  can  be  duly  weighed, 
we  must  know  where  the  conventional  argument  actually  places  us,  and 
the  measure  of  protection  and  redress  they  actually  and  necessarily 
contemplate  in  the  respective  countries. 

"  The  conventional  stipulations  between  the  United  States  and  China, 
to  which  you  have  referred,  are,  as  you  state,  and  as  appears  from  their 
face,  in  nowise  reciprocal.  Under  the  respective  system  and  nature 
of  the  two  Governments  they  would  not  have  been  made  reciprocal, 
nor  were  they  intended  to  be  so.  The  frankness  which  animates  your 
note  will,  I  think,  lead  you  to  agree  with  me,  after  considering  the  very 
different  organizations  and  policies  of  the  Governments  of  our  respective 
countries  which  find  frequent  recognition  in  the  terms  of  the  sundry 
treaties  between  them,  that  the  privileges  and  immunities  of  Chinese 
subjects  now  within  the  jurisdiction  of  the  United  States  are  vastly 
greater  than  ever  were  or  are  extended  to  American  citizens  who,  under 
the  restrictions  of  the  treaties,  are  allowed  to  reside  and  transact  busi- 
ness in  China. 

"  The  several  treaties  of  1844,  1858,  1868,  and  1880  are  acts  in  pari 
materia,  and  no  subsequent  one  of  them  abrogates  those  which  are 
prior  in  date.  There  have  been  successive  modifications,  extensions,  or 
substitutions  as  to  special  subjects,  but  always  in  express  revival  and 
renewal  of  pre-existing  treaties ;  and,  unless  abrogated  in  express  terms 
or  repealed  impliedly  by  the  adoption  of  new  and  inconsistent  features, 
they  all  remain  in  force.  Upon  those  jiremises,  and  passing  all  the 
personal  and  residential  stipulations  in  review,  we  find  restrictions  ex- 
pressly recognized  throughout  all  the  treaties,  which  prove  the  inability 
to  provide  reciprocity,  by  reason  of  the  totally  variant  basis  on  which 
the  administrative  functions  and  powers  of  the  two  countries  are  con- 
ducted. 

"  Until  1868  no  right  of  immigration  of  Chinese  subjects  to  the  United 
States  was  ever  formally  extended.  None  was,  perhaps,  needed,  for, 
under  our  free  popular  Government,  and  in  the  absence  of  any  restrictive 
legislation,  our  territory  was  and  is  equally  open  to  all  aliens.  It  was 
altogether  different  in  China.  That  country  was  closed  to  alien  residence 
as  by  a  wall.  A  specific  right  had  to  be  conventionally  created  before 
this  exclusion  could  be  modified.  To  certain  classes  of  citizens  of  the 
United  States  the  treaty  of  1844  granted  carefully  restricted  rights  to 
visit  and  sojourn  in  China,  but  in  every  one  of  the  articles  which  treats 
of  transient  or  permanent  right  of  residence  appears  the  qualification 
that  it  is  for  purposes  of  trade. 

"Article  I  applies  to  our  citizens  '  resorting  to  China  for  the  purposes 
of  commerce.'' 

"Article  III  permits  Americans  to  frequent  certain  specified  ports, 
'  and  to  reside  with  their  families  and  trade  there.^ 

"Article  IV  relates  to  'citizens  of  the  United  States  doing  business 
at  the  said'  ports. 

478 


CHAP.  III.]  CHINA.  [§  67. 

"Article  V  refers  to  '  citizens  of  the  United  States  lawfully  engaged 
in  commerce.''  The  important  Article  XIX,  in  regard  to  protection, 
speaks  of  '  citizens  of  the  United  States  in  China  peaceably  attending 
to  their  affairs,^  and  by  '  their  aflairs'  we  may  regard  the  '  lawful '  com- 
merce elsewhere  spoken  of  in  the  treaty  as  having  been  uppermost  in 
the  minds  of  the  negotiators.  Not  merely  was  the  purpose  of  their 
sojourn  restricted,  but  citizens  of  the  United  States  could  not,  under 
Article  XVII,  lawfully  transgress  certain  residential  limits.  Even 
within  those  limits  they  were  not  free  to  select  the  sites  for  their  '  houses 
and  places  of  business,  and  also  hospitals,  churches,  and  cemeteries.' 
The  '  merchants '  of  the  United  States  were  not  to  unreasonably  insist 
on  particular  spots  for  those  objects.  Their  residence  was  expressly 
conditioned  on  its  being  acceptable  to  the  native  inhabitants.  The 
treaty  says,  and  I  am  sure  you  will  recognize  the  force  of  this  provision : 

"  'The  local  authorities  of  the  two  Governments  shall  select  in  concert 
the  sites  for  the  foregoing  object,  having  due  regard  to  the  feelings  of  the 
people  in  the  location  thereof 

"And  of  that  found  at  the  close  of  the  same  Article  XYII : 

"'And  in  order  to  the  preservation  of  the  public  peace,  the  local  officers 
of  the  Government  at  each  of  the  five  ports  shall,  in  concert  with  the 
consuls,  define  the  limits  beyond  which  it  shall  not  be  lawful  for  citizens 
of  the  United  States  to  go.'' 

"  The  impracticability  of  maintaining  efficient  police  protection  in 
many  portions  of  every  widely-extended  domain  was  recognized  by  the 
Chinese  Government  when  they  expressly  guarded  against  liability  in 
the  closing  paragraph  of  Article  XXIV  of  the  treaty  of  1844,  as  follows : 

"  'But  if,  by  reason  of  the  extent  of  territory  and  numerous  popula- 
tion of  China,  it  should  in  anj'^  case  happen  that  the  robbers  cannot  be 
apprehended  or  the  property  only  in  part  recovered,  then  the  law  will 
take  its  course  in  regard  to  the  local  authorities,  but  the  Chinese  Gov 
erument  will  not  make  indemnity  for  the  goods  lost' 

"Article  XII  of  the  treaty  of  1858  is  a  substantial  reaffirmation  of  these 
conditions.  And  it  is  to  be  noted  that  this  treaty  of  1858,  while  re-en- 
acting many  of  the  provisions  of  that  of  1844,  and  passing  over  others, 
in  no  place  intimates  any  enlargement  of  the  residential  class  of  unoffi- 
cial American  citizens  to  include  others  than  merchants  and  their  fami- 
lies within  the  narrow  limits  aforesaid.  Ten  years  later  we  find  the 
Burlingame  treaty  opening  with  the  significant  declaration  that  the 
object  of  preceding  treaties  has  been  to  give  aliens  certain  restricted 
privileges  of  resort  and  residence  in  particular  localities  'for  purposes 
of  trade.'  Article  V  appears  to  extend  the  purposes  of  residence  and 
resort  by  including  'curiosity'  as  a  motive;  but  even  this  extension  is 
incidental  to  the  enunciation  of  a  principle,  so  that  laws  may  be  passed, 
not  to  guarantee  'free  migration  and  emigration'  without  limit,  but  to 
prohibit  involuntary  emigration — in  other  words,  to  suppress  the  labor 

and  coolie  traffic. 

479 


J  67.]  INTERVENTION.  [CHAP.  III. 

"Article  VII  permits  Americans  to  establish  schools  in  China,  and  by 
implication  includes  American  teachers  in  the  classes  admitted  to  re- 
stricted residence.  In  this,  as  in  the  other  treaties,  there  is  nothing  to 
offset  the  idea  of  continued  restriction,  for  Article  VI,  which  gives  to 
citizens  of  the  United  States  visiting  or  residing  in  China  '  the  same 
privileges,  immunities,  or  exemptions  in  respect  to  travel  or  residence 
as  may  there  be  enjoyed  by  the  citizens  or  subjects  of  the  most  favored 
liation,'  neither  creates  nor  extends  any  right  of  alien  sojourn,  but  rather 
confirms  the  announced  determination  of  China  to  reserve  all  such  rights 
not  expressly  granted. 

"  To  sum  up,  as  the  treaties  stand,  American  citizens  not  of  diplo- 
riiatic  or  consular  office  may  resort  to  China  for  trade,  for  curiosity,  or 
as  teachers,  and  then  only  to  certain  carefully  limited  localities,  '  hav- 
ing clue  regard  to  the  feelings  of  the  people  in  the  location  thereof.'  If 
the  citizens  or  subjects  of  any  other  power  should  be  granted  other  or 
greater  privileges,  then  the  citizens  of  the  United  States  will  have  equal 
treatment. 

"On  the  other  hand,  Chinese  subjects  were  at  all  times  free  between 
1844  and  1868  to  come  to  the  United  States  and  travel  or  sojourn 
therein,  pursuing  whatever  lawful  occupation  they  might  see  fit  to  en- 
gage in,  without  the  need  of  treaty  guarantee.  The  sixth  article  of  the 
Burlingame  treaty  created  noprivilege  in  their  behalf;  it  simply  recorded 
an  existing  fact;  for  the  Chinese  were  then  as  free  to  visit  and  sojourn 
in  the  United  States  as  any  other  aliens  were,  and  no  law  of  regulation 
or  inhibition  was  upon  our  statute  books. 

"  There  was,  therefore,  in  all  these  years  no  reciprocity  of  treatment 
of  the  citizens  or  subjects  of  the  one  country  within  the  jurisdiction  of 
the  other.  There  could  not  be,  for  the  Chinese  Government  so  restricted 
and  hedged  about  its  conceded  and  carefully  limited  privileges  as  to 
make  reciprocity  impossible  on  the  part  of  the  United  States,  unless 
taking  the  form  of  retaliation,  which  our  system  of  laws  makes  imprac 
ticable. 

"  The  treaty  of  1880  is  absolutely  unilateral.  It  conveys  no  hint  of 
rfeciprocity.  Its  second  article  gives  to  Chinese  teachers,  students, 
merchants,  and  those  actuated  by  motives  of  curiosity,  and  also  to  the 
Chinese  laborers  then  (1880)  in  the  United  States,  the  right  to  *go  and 
come  of  their  own  free  will  and  accord,'  and,  in  addition  to  this,  the 
same  treatment  as  the  citizens  or  subjects  of  the  most  favored  nation. 
I  refrain  from  asking  you  to  point  out  to  me  any  responsive  position  in 
any  of  our  treaties  with  China  which  guarantees  to  American  teachers, 
students,  merchants,  curiosity  seekers,  and  laborers  the  right  to  '  go  and 
come  of  their  own  free  will  and  accord'  throughout  the  length  and 
breadth  of  China,  'without  regard  to  the  feelings  of  the  people'  in  the 
localities  whither  they  may  resort.  I  likewise  refrain  from  invoking  the 
argumentum  ad  hominem,  as  yon  hiive  done,  and  from  inquiring  whether, 
480 


CHAP,  III.]  CHINA.  [§  67. 

in  thus  restriclinff  the  resort  and  residence  of  aliens,  China  has  'done 
as  she  would  be  done  by.'  I  am  content  to  assume  that  these  restric- 
tions are  of  the  nature  of  the  case,  and  that  China  has  soufjht  to  confine 
her  duty  in  respect  of  aliens  within  such  limits  as  might  be  convenient 
and  practicable  for  its  exercise,  but  always  granting  no  more  privilege 
than  she  chooses  to  grant,  and  conceding  none  whatever  as  of  right,  but 
only  as  matter  of  convention.  And  (although  the  point  is  not  directly 
allied  to  the  object-matter)  you  will  permit  me  to  remark  that  I  find  a 
pertinent  illustration  of  the  subjection  of  all  privileges  of  alien  sojourn 
in  China  to  the  mere  volition  of  its  Government,  rather  than  to  princi- 
ples of  international  usage  or  comity,  in  the  very  narrow  rights  of  visit 
and  sojourn  accorded  by  treaties  even  to  the  minister  of  the  United 
States  in  the  Chinese  capital. 

"  Passing  from  the  question  of  reciprocity,  whether  in  its  sentimental 
or  contractual  aspects,  to  the  question  of  the  actual  guarantee  stipulated 
by  the  United  States  to  Chinese  of  all  classes,  including  laborers  within 
their  jurisdiction,  and  of  the  responsibilities  of  this  Government  in  the 
matter,  we  find  that  in  the  treaty  of  1868,  by  its  sixth  article,  the  United 
States,  for  the  first  time,  established  as  a  treaty  right  the  theretofore 
consuetudinary  privilege  of  emigration  of  Chinese  to  this  country. 
That  article  says : 

*' '  Chinese  subjects,  visiting  or  residing  in  the  United  States,  shall 
enjoy  the  same  privileges,  immunities,  and  exemptions  in  respect  to 
travel  or  residence  as  may  there  be  enjoyed  by  the  citizens  or  subjects 
of  the  most  favored  nation.' 

"  This  is  renewed,  with  definition  and  limitation  of  the  particular 
classes  of  Chinese  to  which  it  is  applicable,  in  the  second  article  of  the 
treaty  of  1880. 

"  What  is  the  substantial  and  full  intent  and  meaning  of  these  pro- 
visions as  laid  down  in  1868,  and  again  with  special  definition  in  1880 1 

"  What '  most  favored  nation '  is  to  be  taken  as  a  test  and  for  the 
purpose  of  comparing  the  rights  of  its  citizens  or  subjects  in  the 
United  States  with  those  of  China  ? 

"  To  constitute  a  special  favor  between  nations  it  must  exist  in  virtue 
of  treaty  or  law,  and  be  extended  in  terms  to  a  particular  nation  as  a 
nation.  Applying  this  test,  the  citizens  or  subjects  of  no  nation  (unless 
it  be  those  of  China)  have  any  special  favor  in  the  way  of  personal  treat- 
ment shown  them  in  the  United  States.  All  are  treated  alike,  the  sub- 
jects of  the  most  powerful  nations  equally  with  others.  An  Englishman, 
a  Frenchman,  a  German,  a  Eussian,  is  neither  more  nor  less  favored 
than  one  of  any  other  nationality. 

"  Tried  by  this  test,  will  it  be  denied  that  tlic  public  and  local  laws 

throughout  the  United  States  make  no  distinction  or  discrimination 

unfavorable  to  any  man  by  reason  of  his  Chinese  nationality,  except 

only  those  Federal  laws  regulating,  limiting,  and  suspending  Chinese 

S.  Mis.  162— VOL.  I M  481 


§  67.]  INTERVENTION.  [CHAP.  III. 

immigratiou  which  have  been  enacted  in  conformity  with  the  express 
provisions  of  the  treaty  of  1880? 

"  What  are  the  duties  of  the  Government  of  the  United  States  under 
that  treaty  toward  Chinese  subjects  within  their  jurisdiction  ? 

''  TheChinese  subjects  now  in  the  United  States  are  certainly  accorded 
all  the  rights,  privileges,  immunities,  and  exemptions  which  pertain  to 
the  citizens  and  subjects  of  the  most  favored  nation,  as  is  provided  in 
the  second  article  of  the  treaty.  They  are  suffered  to  travel  at  will  all 
over  the  United  States,  to  engage  in  any  lawful  occupation,  and  to  reside 
in  any  quarter  which  they  may  select,  and  there  is  no  avenue  to  public 
justice  or  protection  for  their  lives,  their  commercial  contracts,  or  their 
l^roperty  in  any  of  its  forms  which  is  not  equally  open  to  them  as  to  the 
citizens  of  our  own  country. 

"The  same  laws  are  administered  by  the  same  tribunals  to  Chinese 
subjects  as  to  American  citizens,  save  in  one  respect,  wherein  the 
Chinese  alien  is  the  more  favored,  since  he  has  the  right  of  option  in 
selecting  either  a  State  or  a  Federal  tribunal  for  the  trial  of  his  rights, 
which,  in  many  cases  is  denied  for  residential  causes  to  our  own  citizens ; 
and  he  may  even  at  will  remove  his  cause  from  a  State  to  a  Federal 
court. 

"Thus,  I  find  in  the  public  i)ress  the  announcement  that  Wing  Hing, 
on  behalf  of  himself  and  others,  Chinese  subjects,  has  lately  brought 
suit  in  the  United  States  circuit  court  to  recover  $132,000  from  the  city 
of  Eureka,  Humboldt  County,  California,  for  loss  of  property  by  the 
action  of  a  mob  in  February  of  last  year.  A  citizen  of  that  State  would 
have  been  compelled  to  resort  to  a  State  tribunal,  without  appeal  beyond 
the  jurisdiction  of  the  State,  whereas  the  Chinese  iDlaintift'  in  question 
can  carry  his  case  on  appeal  to  the  Supreme  Court  at  Washington,  thus 
divesting  his  rights  from  all  adverse  chance  of  local  prejudice. 

•'I  think  you  will  thus  recognize,  in  the  same  frank  spirit  as  animates 
your  note,  that  none  of  the  protection  intended  by  the  law  for  our  own 
citizens  is  withheld  from  your  countrymen,  but  that,  on  the  contrary, 
they  possess  noteworthy  advantages  in  the  choice  of  forum  or  the 
removal  of  their  cause,  of  which  many  of  our  citizens  are  deprived. 

"  The  provision  of  an  organized  and  in  some  cases  privileged  forum 
excludes  the  idea  of  direct  recourse  by  the  alien  to  other  means  of 
obtaining  justice  or  redress.  Your  note  argues  that  direct  recourse  to 
administrative  or  executive  settlement  is  open  to  citizens  of  the  United 
States  in  China,  and  instances  are  cited  to  show  this.  Surely,  this  rather 
proves  that  to  the  alien  in  China  no  such  judicial  forum  is  secured  as  to 
aliens  in  the  United  States. 

"The  extraterritorial  tribunals  established  for  their  own  citizens  or 
subjects  by  all  the  powers  in  treaty  relations  with  China  are,  in  princi- 
ple and  from  the  reason  of  the  thing,  incompetent  to  adjudicate  ques- 
tions touching  the  liability  of  China  to  aliens.  In  default  of  Chinese 
tribunals  admittedly  competent  to  take  cognizance  of  the  causes  of  for- 
i82 


CHAP.  III.]  CHINA.  [§  67. 

eigners,  what  alternative  remains  besides  denial  of  justice  or  resort  to 
diplomatic  settlement  ? 

"  The  system  of  Government  which  prevails  in  the  United  States,  and 
which  their  public  written  Constitution  has  made  well  known  to  the 
Government  of  China  at  the  time  of  our  entering  into  treaties  with  that 
country,  creates  several  departments,  distinct  in  function,  yet  all  tend- 
ing to  secure  justice  and  to  maintain  law  and  order.  These  three  dis- 
tributive divisions  of  the  sovereign  powers  of  the  American  people  are 
entirely  independent  of  each  other,  and  the  fundamental  principle  of 
their  several  action  is  the  non.-interference  of  their  respective  functions. 
Thus,  the  duty  of  the  Executive  is  to  carry  into  force  the  laws  enacted 
by  the  legislature,  and  his  only  warrant  of  authority  to  act  in  any  case 
must  be  found  in  the  Constitution,  or  in  the  laws  passed  in  pursuance 
thereof  by  the  co-ordinate  legislative  branch. 

"To  the  judicial  branch  is  committed  the  administration  of  remedies 
for  all  wrongs,  and  its  courts  are  open,  with  every  aid  they  can  devise, 
to  secure  publicity  and  impartiality  in  the  administration  of  justice  to 
every  human  being  found  within  their  jurisdiction.  Providing  thus  a 
remedy  for  all  individuals,  whether  many  or  few,  rich  or  poor,  and  of 
whatever  age,  sex,  race,  or  nationality,  the  question  of  liability  for 
reparation  or  indemnity  for  losses  to  individuals,  occurring  in  any  way, 
must  be  settled  by  the  judgments  of  the  judicial  branch,  unless  the  act 
complained  of  has  been  committed  under  ofl&cial  authority  in  pursuance 
of  governmental  orders  to  that  end. 

"The  Government  of  the  United  States  recognizes  in  the  fullest  sense 
the  honorable  obligation  of  its  treaty  stipulations,  the  duties  of  inter- 
national amity,  and  the  potentiality  of  justice  and  equity,  not  trammeled 
by  technical  rulings  nor  limited  by  statute.  But  among  such  obliga- 
tions are  not  the  reparation  of  injuries  or  the  satisfaction  by  indemnity 
of  wrongs  inflicted  by  individuals  upon  other  individuals  in  violation  of 
the  law  of  the  land. 

"Such  remedies  must  be  pursued  in  the  proper  quarter  and  through 
the  avenues  of  justice  marked  out  for  the  reparation  of  such  wrongs. 

"The  doctrine  of  the  non-liability  of  the  United  States  for  the  acts 
of  individuals  committed  in  violation  of  its  laws  is  clear  as  to  acts  of 
its  own  citizens,  and  a  fortiori  in  respect  to  aliens  who  abuse  the  priv- 
ilege accorded  them  of  residence  in  our  midst  by  breaking  the  public 
peace  and  infringing  upon  the  rights  of  others,  and  it  has  been  cor- 
rectly and  authoritatively  laid  down  by  my  predecessors  in  oflBce,  to 
whose  declarations  iu  that  behalf  your  note  refers.  To  that  doctrine 
the  course  of  this  Government  furnishes  no  exception.  And  in  this 
connection  I  venture  to  say  that  you  labor  under  a  misapprehension 
in  citing  as  an  exception  the  action  of  the  United  States,  iu  1850,  in 
respect  of  the  violence  committed  upon  the  Spanish  consulate  at  ^S'ew 
Orleans  by  a  mob  of  irresponsible  persons  unknown  to  the  Govern- 

483 


§  67.]  INTERVENTION.  [CHAP.  III. 

ment,  and  with  which  no  officer  or  agent  of  the  United  States  was 
allied. 

"Nothing  can  be  clearer  than  the  enunciation  of  the  doctrine  of  Gov- 
ernment nonliability  on  that  occasion.  "While  denouncing  such  out- 
rages as  disgraceful,  and  in  criminal  violation  of  law  and  order,  it  was 
emphatically  denied  that  the  acts  in  question  created  any  obligation  on 
the  part  of  the  United  States,  arising  out  of  the  good  faith  of  nations 
toward  each  other,  for  the  losses  thus  occasioned  by  and  to  individuals. 
Neither  is  there  a  parity  between  the  Spanish  incident  of  1850  and  the 
recent  riot  and  massacre  of  the  Chinese  at  Eock  Springs.  The  essen- 
tial feature  of  the  first  is  wholly  wanting  in  the  second.  The  emblem 
of  Spanish  nationality  had  suffered  an  affront  in  a  city  of  the  United 
States.  The  special  immunity  attaching  to  the  Spanish  consular  rep- 
resentative had  been  impaired  and  he  subjected  to  personal  indignity. 
The  incident  occurred  at  a  time  when  the  Spanish  Government  had 
just  shown  its  regard  for  and  good-will  toward  the  United  States  in 
pardoning  certain  American  citizens  who  had  participated  in  a  hostile 
invasion  of  Cuba,  and  had  incurred  the  condemnation  of  the  authorities 
of  that  country.  Recognizing  the  merciful  action  of  the  Queen  of  Spain 
in  this  regard,  and  as  a  responsive  act  of  generosity  and  friendship 
tending  toward  good  relationship,  the  President,  while  expressly  deny- 
ing the  principle  of  national  liability,  recommended  to  Congress  the 
appropriation  of  certain  moneys  to  be  paid  to  private  individuals  on 
account  of  the  damages  caused  by  riots  at  New  Orleans  and  Key  West, 
and  to  the  Spanish  consul  at  New  Orleans  a  special  indemnity  as  an 
official  of  Spain. 

"In  one  thing,  however,  the  Spanish  riots  of  1850  and  the  Rock 
Springs  massacre  of  1884  are  similar :  both  grew  out  of  alien  animosi- 
ties transplanted  to  our  shores.  The  acts  of  the  mob  at  Key  West  and 
New  Orleans  were  largely,  perhaps  wholly,  due  to  the  resentment  of 
disaffected  Spanish  subjects  colonized  at  those  points  who  were  ready 
to  abuse  the  sacred  law  of  hospitality  and  make  the  land  of  their  asylum 
the  theater  of  attacks  on  the  recognized  sovereignty  of  Spain.  At 
Rock  Springs,  as  I  have  shown,  the  conflict  sprang  from  labor  ques- 
tions between  aliens.  But  this  has.no  bearing  on  the  question  of  the 
indemnity  accorded  to  Spain,  which  was,  as  you,  indeed,  candidly' 
admit  in  your  note,  *a  voluntary  act  of  good-will  above  and  beyond 
the  strict  authorization  of  domestic  law,'  and,  I  may  add,  of  interna- 
tional law  also. 

"A  measure  of  international  obligation  rests  on  the  United  States 
under  the  third  article  of  the  treaty  of  1880,  which,  in  the  event  Chi- 
nese laborers  or  others  in  the  United  States  '  meet  with  ill-treatment 
at  the  hands  of  other  persons,'  requires  the  Government  of  the  United 
States  to  'exert  all  its  power'  to  devise  measures  for  their  protection, 
and  to  secure  to  them  the  same  '  rights,  privileges,  immunities,  and 
484 


CHAP.  III.]  CHINA  [§  U7. 

exemptions  as  may  be  enjoyed  by  the  citizens  or  subjects  of  the  most 
favored  nation,  and  to  which  they  are  entitled  by  treaty.' 

'•That  the  power  of  the  National  Government  is  promptly  and  cfli- 
ciently  exercised  whenever  occasion  unhappily  arises  therefor  you  have 
justly  acknowledged  and  it  has  been  abundantly  shown.  The  condi- 
tions under  which  this  power  may  be  applied  are  not  always  clear  and 
are  sometimes  very  difficult.  Causes  growing  out  of  the  peculiar  char- 
acteristics and  habits  of  the  Chinese  immigrants  have  induced  them  to 
segregate  themselves  from  the  rest  of  the  residents  and  citizens  of  the 
United  States,  and  to  refuse  to  mingle  with  the  mass  of  poi)ulation  as 
do  the  members  of  other  nationalities.  As  a  consequence  race  prejudice 
has  been  more  excited  against  them,  notably  among  aliens  of  other 
nationalities  who  are  more  directly  brought  into  comj)etition  with  the 
Chinese  in  those  ruder  fields  of  merely  manual  toil  wherein  our  skilled 
native  labor  finds  it  uui)rofitable  to  engage.  As  the  conflicting  elements 
are  less  law-abiding  and  more  ignorant,  the  clash  of  their  opposed  inter- 
ests is  the  fiercer.  The  question  of  labor  competition  is  one  that,  in  the 
present  condition  of  the  world's  history,  is  causing  convulsion  in  almost 
every  quarter  of  the  civilized  world,  and  the  United  States,  with  all 
their  breadth  of  territory  and  the  advantages  of  local  self-government 
by  and  for  the  people,  are  by  no  means  exempt  from  the  disorders  to 
which  the  struggle  for  bread  gives  rise. 

"  Moreover,  the  Chinese  laborers  voluntarily  carry  this  principle  of 
isolation  and  segregation  into  remote  regions  where  law  and  authority  are 
well  known  to  be  feeblest,  and  where  conflicts  of  labor  and  prejudices 
of  race  may  be  precipitated  on  the  slightest  pretext  and  carried  with- 
out check  to  limits  beyond  those  possible  where  the  powers  of  law  may 
be  better  organized. 

"  No  measures  can  be  devised  to  meet  the  problem  which  do  not  take 
this  state  of  things  into  account,  nor  can  they  be  effective  if  they  do 
not  contemplate  the  exercise  of  authority  where  it  is  competent  to 
afford  protection,  for  these  measures  have  only  for  their  object  to  secure 
to  the  Chinese  the  same  rights  as  other  foreigners  of  the  most  favored 
nation  enjoy,  not  superior  or  special  rights.  For  Chinese  labor  is  not 
alone  repugnant  to  the  local  communities;  from  many  quarters  of  the 
land  comes  the  same  cry — the  conflict  of  ditterent  alien  laborers  and  the 
oppression  of  the  weaker  by  the  stronger.  There  can  and  should  be  no 
discrimination  in  applying  punitive  measures  to  all  infractions  of  law. 
And  so,  too,  with  preventive  measures.  What  will  protect  a  Hungarian 
or  Italian  contract  laborer  in  Pennsylvania,  or  a  Swedish  'non  union' 
man  in  Ohio,  is  equally  applicable  to  a  Chinaman  on  the  Pacific  coast. 

"  I  have  traversed  somewhat  broader  ground  than  is  perhaps  re- 
quired by  the  propositions  of  your  note  of  November  30,  but  I  do  so 
because  your  later  note  of  February  15  appears  to  enlarge  the  area  of 
discussion. 

485 


§  67.]  INTERVENTION.  [CHAP.  III. 

"  Eeverting,  however,  to  j^our  appeal  of  Kovember  30,  which  I  under- 
stand to  be  a  direct  application  to  the  sense  of  equity  and  justice  of  the 
United  States  for  relief  for  the  unfortunate  victims  of  the  carnage  and 
excesses  of  the  mob  at  Rock  Springs,  I  am  compelled  to  state  most  dis- 
tinctly that  I  should  fail  in  my  duty  as  representing  the  well-founded 
principles  upon  which  rests  the  relation  of  this  Government  to  its  citi- 
zens, as  well  as  to  those  who  are  not  its  citizens  and  yet  are  permitted 
to  come  and  go  freely  within  its  jurisdiction,  did  I  not  deny  emphat- 
ically all  liability  to  indemnify  individuals,  of  whatever  race  or  country, 
for  loss  growing  out  of  violations  of  our  public  law,  and  declare  with 
equal  emjihasis  that  just  and  ami)le  opportunity  is  given  to  all  who 
suffer  wrong  and  seek  reparation  through  the  channels  of  justice  as  con- 
ducted by  the  judicial  branch  of  our  Government. 

"  Yet  I  am  frank  to  say  that  the  circumstances  of  the  case  now  under 
consideration  contain  features  which  I  am  disposed  to  believe  may  in- 
duce the  President  to  recommend  to  the  Congress,  not  as  under  obliga- 
tion of  treaty  or  principle  of  international  law,  but  solely  from  a  senti- 
ment of  generosity  and  pity  to  an  innocent  and  unfortunate  body  of 
men,  subjects  of  a  friendly  power,  who,  being  peaceably  employed 
within  our  jurisdiction,  were  so  shockingly  outraged;  that  in  view  of 
the  gross  and  shameful  failure  of  the  police  authorities  at  Eock  Springs, 
in  Wyoming  Territory,  to  keep  the  peace,  or  even  to  attempt  to  keep 
the  peace,  or  to  make  proper  efforts  to  uphold  the  law  or  punish  the 
criminals,  or  make  compensation  for  the  loss  of  proi)erty  pillaged  or 
destroyed,  it  may  reasonably  be  a  subject  for  the  benevolent  considera- 
tion of  Congress  whether,  with  the  distinct  understanding  that  no 
precedent  is  thereby  created,  or  liability  for  want  of  proper  enforcement 
of  police  jurisdiction  in  the  Territories,  they  will  net,  ex  gratia,  grant 
pecuniary  relief  to  the  sufferers  in  the  case  now  before  us  to  the  extent 
of  the  value  of  the  property  of  which  they  were  so  outrageously  deprived, 
to  the  grave  discredit  of  republican  institutions. 

"  I  trust  you  will  recognize  in  what  I  have  herein  suggested  the  desire 
of  the  United  States  to  carry  into  eff'ect  the  ^golden  rule'  recited  in  the 
treaty  to  which  you  have  made  reference,  and  that  in  such  action  you 
will  perceive  our  wish  and  purpose  to  conform  and  perpetuate  the  friend- 
ship and  comity  which,  I  trust,  may  long  exist  between  our  respective 
countries.  You  will,  I  am  sure,  agree  that  in  good  faith,  and  in  com- 
pliance with  their  obligations,  the  Government  of  the  United  States  is 
strenuously  asserting  its  power  to  secure  the  protection  of  your  coun- 
trymen within  its  jurisdiction." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cheng  Tsao  Ju,  Feb.  18,  1886.     MSS.  Notes, 
China.     House  Ex.  Doc.  102,  49th  Cong.,  1st  sess. 

"  I  transmit  herewith  for  the  consideration  of  Congress,  with  a  view 
to  appropriate  legislation  in  the  premises,  a  report  of  the  Secretary  of 
486 


CHAP.   III.]  CHINA.  [§  67. 

State,  with  certain  correspondence,  touching  the  treaty  right  of  Chinese 
subjects  other  than  laborers  '  to  go  and  come  of  their  own  free  will  and 
accord.' 

"  In  my  annual  message  of  the  8th  of  December  last  I  said: 

"  '  In  the  application  of  the  acts  lately  passed  to  execute  the  treaty  of 
1880,  restrictive  of  the  immigration  of  Chinese  laborers  into  the  United 
States,  individual  cases  of  hardship  have  occurred  beyond  the  power  of 
the  Executive  to  remedy,  and  calling  for  judicial  determination.' 

"These  cases  of  individual  hardship  are  due  to  the  ambiguous  and 
defective  provisions  of  the  acts  of  Congress  approved,  respectively,  on 
the  6th  May,  1882,  and  5th  July,  1884.  The  hardship  has  in  some 
cases  been  remedied  by  the  action  of  the  courts.  In  other  cases,  how- 
ever, where  the  phraseology  of  the  statutes  has  appeared  to  be  con- 
clusive against  any  discretion  on  the  part  of  the  officers  charged  with 
the  execution  of  the  law,  Chinese  persons  expressly  entitled  to  free  ad- 
mission under  the  treaty  have  been  refused  a  landing  and  sent  back  to 
the  country  whence  they  came,  without  being  afforded  any  opportunity 
to  show  in  the  courts  or  otherwise  their  right  to  the  privilege  of  free 
ingress  and  egress  which  it  was  the  purpose  of  the  treaty  to  secure. 

"  In  the  language  of  one  of  the  judicial  determinations  of  the  Supreme 
Court  of  the  United  States  to  which  I  have  referred,  '  the  supposition 
should  not  be  indulged  that  Congress,  while  professing  to  faithfully 
execute  the  treaty  stipulations,  and  recognizing  the  fact  that  they  secure 
to  a  certain  class  the  right  to  go  from  and  come  to  the  United  States, 
intended  to  make  its  protection  depend  upon  the  performance  of  con- 
ditions which  it  was  physically  impossible  to  perform.'  (U.  S.  K.,  1V2, 
page  554,  Chew  Heong  v.  U.  S.) 

"The  act  of  July  5,  1884,  imposes  such  an  impossible  condition  in  not 
providing  for  the  admission,  under  proper  certificate,  of  Chinese  trav- 
elers of  the  exempted  classes  in  the  cases  most  likely  to  arise  in  ordi- 
nary commercial  intercourse. 

"  The  treaty  provisions  governing  the  case  are  as  follows : 

" 'Article  I.  *  *  *  The  limitation  or  suspension  shall  be  reason- 
able, and  shall  apply  only  to  Chinese  who  may  go  to  the  United  States 
as  laborers,  other  classes  not  being  included  in  the  limitations.    •    »    • 

"  'Art.  II.  Chinese  subjects,  whether  proceeding  to  the  United  States 
as  teachers,  students,  merchants,  or  from  curiosity,  together  with  their 
body  and  household  servants,  *  *  *  shall  be  allowed  to  go  and 
come  of  their  ow  n  free  will  and  accord,  and  shall  be  accorded  all  the 
rights,  privileges,  immunities,  and  exemptions  which  are  accorded  to 
the  citizens  and  subjects  of  the  most  favored  nation.' 

"  Section  6  of  the  amended  Chinese  immigration  act  of  1884  i)urports 
to  secure  this  treaty  right  to  the  exempted  classes  named  by  means  of 
prescribed  certificates  of  their  status,  which  certificates  shall  be  the 
prima  facie  and  the  sole  permissible  evidence  to  establish  a  right  of  entry 

487 


§  67.]  .  INTERVENTION.  [CHAP.  III. 

into  the  United  States.     But  it  piovides  in  terms  for  the  issuance  of 
certificates  in  two  cases  only: 

(a)  Oliiuc'se  subjects  departing  from  a  port  of  China;  and 

(6)  Chinese  persons  (i.  e.,  of  the  Chinese  race)  who  may  at  the  time 
be  subjects  of  some  foreign  Government  other  than  China,  and  who  may 
depart  for  the  United  States  from  the  ports  of  such  other  foreign  Gov- 
ernment. 

"A  statute  is  certainly  most  unusual  which,  purporting  to  execute  the 
provisions  of  a  treaty  with  China  in  respect  of  Chinese  subjects,  enacts 
strict  formalities  as  regards  the  subjects  of  other  Governments  than 
that  of  China. 

"  It  is  sufficient  that  I  should  call  the  earnest  attention  of  Congress 
to  the  circumstance  that  the  statute  makes  no  provision  whatever  for 
the  somewhat  numerous  class  of  Chinese  persons  who,  retaining  their 
Chinese  subjection  in  some  countries  other  than  China,  desire  to  come 
from  such  countries  to  the  United  States. 

"Chinese  merchants  have  trading  operations  of  magnitude  through- 
out the  world.  They  do  not  become  citizens  or  subjects  of  the  country 
where  they  may  temporarily  reside  and  trade ;  thej'  continue  to  be  sub- 
jects of  China,  and  to  them  the  explicit  exemption  of  the  treaty  applies. 
Yet,  if  such  a  Chinese  subject,  the  head  of  a  mercantile  house  at  Hong- 
Kong  or  Yokohama  or  Honolulu  or  Havana  or  Colon,  desires  to  come 
from  any  of  these  i)laces  to  the  United  States  he  is  met  with  the  re- 
quirement that  he  must  produce  a  certificate,  in  prescribed  form  and  in 
the  English  tongue,  issued  by  the  Chinese  Government.  If  there  be 
at  the  foreign  place  of  his  residence  no  representative  of  the  Chinese 
Government  competent  to  issue  a  certificate  in  the  prescribed  form,  he 
can  obtain  none,  and  is  under  the  provisions  of  the  present  law  unjustly 
debarred  from  entry  into  the  United  States.  His  usual  Chinese  pass- 
port will  not  suffice,  for  it  is  not  in  the  form  which  the  act  prescribes 
shall  be  the  sole  permissible  evidence  of  his  right  to  land.  And  he 
can  obtain  no  such  certificate  from  the  Government  of  his  place  of  resi- 
dence, because  he  is  not  a  subject  or  citizen  thereof,  '  at  the  time,'  or  at 
any  time. 

"  There  being,  therefore,  no  statutory  provision  prescribing  the  terms 
upon  which  Chinese  persons,  resident  in  foreign  countries  but  not  sub- 
jects or  citizens  of  such  countries,  may  prove  their  status  and  rights  as 
members  of  the  exempted  classes  in  the  absence  of  a  Chinese  represent- 
ative in  such  country,  the  Secretary  of  the  Treasury,  in  whom  the  ex- 
ecution of  the  act  of  July  5,  1884,  was  vested,  undertook  to  remedy  the 
omission  by  directing  the  revenue  officers  to  recognize  as  lawful  certifi- 
cates those  issued  in  favor  of  Chinese  subjects  by  the  Chinese  consular 
and  diplomatic  officers  at  the  foreign  port  of  departure  when  visaed  by 
the  United  States  representative  thereat.  This  appears  to  be  a  just 
application  of  the  spirit  of  the  law,  although  enlarging  its  letter,  and  in 
adopting  this  rule  he  was  controlled  by  the  authority  of  high  judicial 
488 


CHAP,  III.]  CHINA.  [5  67. 

decisions  as  to  what  evidence  is  necessary  to  establish  the  fact  that  an 
individual  Chinaman  belongs  to  the  exempted  class. 

"  He,  however,  went  beyond  the  spirit  of  the  act,  and  the  judicial 
decisions,  by  providing,  in  a  circular  dated  January  14,  1885,  for  the 
original  issuance  of  such  a  certificate  by  the  United  States  consular 
officer  at  the  port  of  dei)arture  in  the  absence  of  a  Chineso  diplomatic 
or  consular  representative  thereat.  For  it  is  clear  that  the  act  of  Con- 
gress contemplated  the  intervention  of  the  United  States  consul  only 
in  a  supervisory  capacity,  his  function  being  to  check  the  i)roceeding 
and  see  that  no  abuse  of  the  privilege  followed.  The  power  or  duty  of 
original  certification  is  wholly  distinct  from  that  supervisory  function. 
It  either  dispenses  with  the  foreign  certificate  altogether,  leaving  the 
consular  visa  to  stand  alone  and  sufficient,  or  else  it  combines  in  one 
official  act  the  distinct  functions  of  certification  and  verification  of  the 
fact  certified. 

"The  official  character  attaching  to  the  consular  certification  con- 
templated by  the  unamended  circular  of  January  14, 1885,  is  to  be  borne 
in  mind.  It  is  not  merely  prima  facie  evidence  of  the  status  of  the 
bearer,  such  as  the  courts  may  admit  in  their  discretion ;  it  was  pre- 
scribed as  an  official  attestation,  on  the  strength  of  which  the  customs 
officers  at  the  port  of  entry  were  to  admit  the  bearer  without  further 
adjudication  of  his  status  unless  question  should  arise  as  to  the  truth 
of  the  certificate  itself. 

"  It  became,  therefore,  necessary  to  amend  the  circular  of  January 
14,  1885,  and'  this  was  done  on  the  13th  of  June  following,  by  striking 
out  the  clause  prescribing  original  certification  of  status  by  the  United 
States  consuls.  The  effect  of  this  Amendment  is  to  deprive  any  certifi- 
cate the  United  States  consuls  may  issue  of  the  value  it  purported  to 
possess,  as  sole  permissible  evidence  under  the  statute  when  its  issu- 
ance was  prescribed  by  Treasury  regulations.  There  is,  however, 
nothing  to  prevent  consuls  giving  certificates  of  facts  within  their 
knowledge,  to  be  received  as  evidence  in  the  absence  of  statutory  au- 
thentication. 

"  The  complaint  of  the  Chinese  minister,  in  his  note  of  March  24, 188G, 
is  that  the  Chinese  merchant.  Lay  Sang,  of  the  house  of  King  Lee  & 
Co.,  of  San  Francisco,  having  arrived  at  San  Francisco  from  Hong- 
Kong,  and  exhibited  a  certificate  of  the  United  States  consul  at  Hong- 
Kong  as  to  his  status  as  a  merchant,  and  consequently  exempt  under 
the  treaty,  was  refused  permission  to  land,  and  was  sent  back  to  Hong- 
Kong  by  the  steamer  which  brought  him.  While  the  certificate  he  bore 
was  doubtless  insufficient  under  the  present  law,  it  is  to  be  remembered 
that  there  is  at  Hong-Kong  no  representative  of  the  Government  of 
China  competent  or  authorized  to  issue  the  certificate  required  by  the 
statute.  The  intent  of  Congress  to  legislate  in  execution  of  the  treaty 
is  thus  defeated  by  a  prohibition  directly  contrary  to  the  treaty ;  and 

489 


§  67.]  INTERVENTION.  [CHAP.  in. 

conditions  are  exacted  which,  in  the  words  of  the  Supreme  Conrt  here- 
inbefore quoted,  '  it  was  physically  impossible  to  perform.' 

"  This  anomalous  feature  of  the  act  should  be  reformed  as  speedily 
as  possible,  in  order  that  the  occurrence  of  such  cases  may  be  avoided, 
and  the  imputation  removed  which  would  otherwise  rest  upon  the  good 
faith  of  the  United  States  in  the  execution  of  their  solemn  treaty  en- 
gagements.'- 

•  President  Cleveland,  Special  Message  of  Apr.  6,  1886. 

The  fourth  section  of  the  act  of  Congress,  approved  May  6,  1882, 
chapter  126,  as  amended  by  the  act  of  July  5,  1884,  chapter  120,  pre- 
scribing the  certificate  which  shall  be  produced  by  a  Chinese  laborer  as 
the  "only  evidence  permissible  to  establish  his  right  of  re-entry  "  into 
the  United  States,  is  not  applicable  to  Chinese  laborers  who,  residing 
in  this  country  at  the  date  of  the  treaty  of  November  17, 1880,  departed 
by  sea  before  May  6, 1882,  and  remained  out  of  the  United  States  until 
after  July  5,  1884. 

Chew  Heong  v.  U.  S.,  112  U.  S.,  536. 

In  virtue  of  the  treaty  between  the  United  States  and  China  of  1844, 
all  citizens  of  the  United  States  in  China  enjoy  complete  rights  of  ex- 
territoriality, and  are  answerable  to  no  authority  but  that  of  the  United 
States.    The  whole  subject  examined. 

7  Op.,  495,  Gushing  (1855). 

The  following  Congressional  documents,  cited  from  the  list  of  papers  concerning 
foreign  relations  attached  to  the  register  of  the  Department  of  State,  bear  on  the 
topics  discussed  in  this  section : 

China,  famine  in.     Eelief  asked  by  citizens  of  New  York  and  Boston.     Feb.  8,  1878. 

House  Mis.  Doc.  25,  45th  Cong.,  2d  sess. 

Publication  of  order  for  service  of  summons  on  absent  defendents  in  consular 

courts.     President's  message.    Mar.  22, 1882.    House  Ex.  Doc.  213, 47th  Cong., 

Ist  sess. 

Slavery  in.     President's  message.    Mar.  11,  1880.    House  Ex.  Doc.  60,  4Gth  Cong., 

2d  sess. 
Rent  of  consular  premises  in.     President's  message,  transmitting  report  of  the 
Sec.  of  State.     June  19,  1884.     House  Ex.  Doc.  171,  48th  Cong.,  Ist  sess. 
Chinese  immigration  : 

Restriction  of.     Resolution  favoring  such  a  change  in  the  treaty  with  China  of 
1868  as  will  prev^t  the  great  influx  of  Chinese  into  the  United  States.    Apr. 
20,  1876.    Senate  Mis.  Doc.  93,  44th  Cong.,  Ist.  sess. 
Character,  extent,  and  effect  of,  in  the  United  States.     Report  of  Joint  Special 
Committee  as  to,  with  evidence  taken.    Feb.  27, 1877.     Senate  Eep.  689, 44th 
Cong.,  2d  sess. 
Address  upon  the  social,  moral,  and  political  effect  of,  prepared  by  a  committee 
of  the  senate  of  California.     Nov.  7,  1877.     House  Mis.  Doc.  9,45th  Cong.,  1st 
sess. 
View  of  Oliver  P.  Morton.     Jan.  17, 1878.    Senate  Mis,  Doc.  20, 45th  Cong.,  2d  sess. 
Resolution  of  California  in  favor  of  modification  of  treaty.     Feb.  4, 1878.     House 

Mis.  Doc.  20,  45th  Cong.,  2d  sess. 
Views  of  Joseph  C.  G.  Kennedy.    Feb.  25, 1878.     Senate  Mis.  Doc.  36,  45th  Cong., 
2d  sess. 

480 


CHAP.  III.]  JAPAN.  [^  68. 

Report  iu  favor  of  negotiating  with  Cbina  and  Groat   Britain  to  rentrict.     Feb. 

2:j,  1H78,  House.  Rep.  240,  45th  Cong.,  '2d  sess. 
Resolution  in  favor  of  the  modification  of  the  treaty.  May  7, 1878.   Senate  Mis.  Doc. 

02,  4r)th  Cong.,  2d  sess. 
Report  of  Committee  on  Education  and  Labor.    Jan.  14.  1879.    House  Rep.  62,  45th 

Cong.,  3d  sess. 
Report  adverse  to  taking  action  on  certain  memorials.     Feb.  18, 1879.     Honse  Rep. 

Ill,  45th  Cong.,  3d  sess. 
Veto  of  the  bill.     Message  of  President.    Mar.  1,  1879.    House  Ex.  Doc.  102,  45th 

Cong.,  3d  sess. 
Causes  of  general  depression  in  labor  and  business.     Dec.  10,  1879.     House  Mits. 

Doc.  5,  46th  Cong.,  2d  sess. 
Amendments  to  a  pending  bill.     Mar.  10,  1880.    House  Rep.  519,  46th  Cong.,  2d 

sess. 
Report  of  the  Select  Committee  on  the  Causes  <>f  the  Present  Depression  of  Labor. 

Mar.  19,  1880.    House  Rep.  .572,  46th  Cong..  2d  sess. 
Character  of  the  instructious  given  to  United  States  minister  to  China  on  subject. 

President's  message.     Apr.  12,  1880.     House  Ex.  Doc.  70,  46th  Cong.,  2d  sess. 
Report  recommending  suspension  of,  for  twenty-five  years.     Jan.  26, 1882.    House 

Rep.  67,  47th  Cong.,  1st  sess. 
Veto  of  Senate  bill  71.     President's  message.    Apr.  4, 1882.    Senate  Ex.  Doc.  148, 

47th  Cong.,  1st  sess. 
Minority  report..     Discretion  as  to  number  of  years  to  suspeiid,  lies  with  this  Gov- 
ernment.    Apr.  14,  18'^2.    House   Rep.  1017,  part.  2  (part  1  not  printed),  47th 

Cong.,  1st  sess. 
Report  of  George  F.  Seward,  minister  to  China.     President's  message.    May  15, 

1882.     Senate  Ex.  Doc.  175,  47th  Cong.,  1st  sess. 
Letter  from  the  Secretary  of  the  Treasury  relating  to  the  enforcement  of  the  "Act 

to  execute  certain  treaty  stipulations  relating  to  Chinese  "  (with  map).     Jan. 

18,  1884.    Senate  Ex.  Doc.  62,  48th  Cong.,  1st  sess. 
Majority  and  minority  reports  on  the  bill  to  amend  the  act  approved  May  6,  1882. 

Mar.  4, 1884.    House  Rep.  014,  48th  Cong.,  1st  sess. 
Chinese  indemnity  fund.     Report  in  favor  of  returning  it  to  China.     Feb.  21,  1879. 

House  Rep.  113,  45th  Cong.,  3d  sess. 
Amendment  to  the  bill  providing  for  the  return  of  the  money  to  China.     Apr.  16, 

1880.    House  Rep.  1124,  46th  Cong.,  2d  sess. 
Report  in  favor  of  returning  it  to  China.     Mar.  22, 1884.    House  Rep.  970,  48th 

Cong.,  1st  sess. 

As  to  transit  of  Chinese  in  United  States,  see  Mr.  Bayard  to  Mr.  Morrison,  Mar. 

30,  1886;  see  Mr.  Bayard  to  Mr.  Fairchild,  Mar.  31,  1886.     MSS.  Dom.  Let. 

An  article  on  China  and  international  law  will  be  found  in  Revue  de  Droit  Int. 

for  1885,  No.  &,  504. 

(12)  Japan. 
§  68. 

'<  Your  dispatch  of  May  8  (No.  20)  has  been  received,  together  with 
the  letter  mentioued  therein,  written  by  the  Tycoon  of  Japan  to  the 
President,  and  the  letter  from  the  ministers  of  foreign  affairs  addressed 
to  myself. 

"All  these  papers  relate  to  a  proposition  of  the  Japanese  Government 
that  the  opening  of  the  cities  of  Tedo  and  Osacca  and  the  harbors  of 
Hiogo  and  Keegata,  as  stipulated  in  our  existing  treaty,  shall  be  post- 
491 


§  68.]  INTERVENTION.  [CHAP.  III. 

poned.  Your  own  couusel,  as  given  iu  your  dispatch,  is  that  discre- 
tionary power  be  given  to  the  diplomatic  agent  of  the  United  States  to 
act  in  concert  with  his  colleagues,  the  representatives  of  other  powers 
standing  in  relations  towards  Japan  similar  to  those  of  the  United 
States. 

"  The  course  suggested  is,  as  you  doubtless  were  aware,  different  from 
what  has  been  contemplated  by  the  President.  He  holds,  however,  your 
ability  and  discretion  in  high  consideration,  and  therefore  care  will  be 
taken  to  review  the  subject  fully,  upon  consultation,  if  possible,  with 
the  representatives  here  of  the  other  powers  concerned.  As  soon  as 
the  subject  shall  have  been  thus  considered,  you  will  receive  a  definitive 
communication  in  relation  to  it. 

"  In  the  mean  time  you  will  inform  the  Tycoon  and  the  ministers  for 
foreign  affairs  that  their  letters  have  been  received  and  taken  into  con- 
sideration, with  a  due  desire  to  establish  the  intercourse  between  the 
United  States  and  Japan  on  the  best  and  surest  foundations." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Harris,  July  23,  18fil.     MSS.  Inst.,  Japan; 
Dip.  Corr.,  1861. 

"  I  recur  again- to  your  dispatch  of  the  Ist  of  August,  1860  (No.  26). 

"  In  that  paper  you  recommended  a  postponement  for  another  year  of 
the  exercise  of  the  right  of  American  citizens  to  reside  in  the  city  of 
Yedo  for  the  purpose  of  trade  after  the  1st  of  January  next,  saved  to 
the  United  States  by  a  clause  in  the  third  article  of  the  treaty  of  July 
29,  1858. 

"  In  my  dispatch  to  you  of  the  16th  May  last  (No.  15),  I  stated  that  I 
had  then  addressed  a  note  iu  relation  thereto  to  the  minister  of  Prussia 
in  the  United  States,  of  which  a  copy  was  sent  to  you,  and  also  that  a 
similar  note  had  been  addressed  to  the  ministers  of  Great  Britain, 
France.  Russia,  and  Holland,  and  that  when  replies  to  those  communi- 
cations should  have  been  received  by  the  Department,  no  time  would  be 
lost  in  acquainting  yon  with  their  contents. 

"  The  burden  of  the  circular  note  thus  addressed  to  the  ministers  of 
Great  Britain,  Prance,  Prussia,  Russia,  and  Holland,  was  that  the  Pres- 
ident might,  perhaps,  have  yielded  to  your  suggestion  if  the  circum- 
stances which  surround  the  subject  had  remained  unchanged ;  but  we 
had  learned  bj'  recent  disi)atches  that  Mr.  Heusken,  secretary  of  the 
American  legation  at  Yedo,  was,  on  the  night  of  the  15th  of  January 
last,  waylaid  and  assassinated  in  the  streets  of  that  city  without  any 
other  cause  or  provocation  than  the  fact  that  he  was  a  foreigner. 

"  The  Japanese  Government  had  made  no  satisfactory  explanation  of 
this  great  violation  of  the  rights  of  the  United  States,  and,  on  the  other 
hand,  had  virtually  confessed  its  inability  to  bring  the  offenders  to  pun- 
ishment. 

"  It  was  argued  by  me  in  the  aforesaid  notes  that  the  Japanese  Gov- 
ernment would  infer  that  we  are  unwilling  or  unable  to  vindicate  our 
492 


CHAP.  III.]  JAPAN.  [§  68. 

rights,  if,  leaving  that  transaction  unpunished  and  unexplained,  we 
should  frustrate  the  effect  of  the  treaty  stipulation  for  the  opening  of 
the  city  of  Yedo. 

"  The  President  was,  for  this  reason,  of  opinion  that  no  postponement 
of  the  opening  of  the  city  of  Yedo  ought  to  be  conceded.  He  thought, 
however,  that  some  demonstration,  which  would  render  the  residence 
of  foreigners  in  Yedo  safe,  ought  to  be  made,  and  that  the  other  powers 
consulted  would  probably  be  induced  to  co-operate  in  such  a  demon- 
stration, because  their  representatives  are  equally  exposed  there  with 
our  own.  The  President  therefore  proposed  that  those  powers  should 
announce  to  the  Government  of  Japan  their  willingness  and  their  pur- 
pose to  make  common  cause  and  co-operate  with  this  Government  in 
exacting  satisfaction,  if  the  Japanese  Government  should  not  at  once 
put  forth  all  possible  effort  to  secure  the  punishment  of  the  assassins 
of  Mr.  Heusken,  and  also  in  making  requisitions  with  signal  vigor  if 
any  insult  or  injury  should  be  committed  against  any  foreigner  residing 
in  Yedo,  after  the  opening  of  the  city  in  January  next,  according  to  the 
treaty. 

"  The  ministers  addressed,  as  I  have  reason  to  know,  promptly  sub- 
mitted these  suggestions  to  their  respective  Governments,  together 
with  a  form  of  a  convention  for  currying  them  into  effect.  This  pro- 
jected convention  contemjilated  the  disi)atch  of  a  fleet  of  steamers 
adequate  to  impress  the  Japanese  Government  with  the  ability  and  the 
determination  of  the  states  engaged  to  secure  a  performance  of  its 
treaty  stipulations. 

"Subsequently  to  these  proceedings,  and  while  no  answers  had  yet 
been  received  from  the  Governments  consulted,  your  dispatch  (So.  20) 
of  the  date  of  May  8,  1861,  was  received,  accompanied  by  a  letter  ad- 
dressed by  his  Majesty  the  Tycoon  to  the  President  of  the  United 
States,  and  also  a  letter  to  myself,  written  by  the  Japanese  ministers 
of  foreign  affairs. 

"  Those  letters  expressed  the  desire  of  the  Government  of  Japan  that 
the  opening  of  the  cities  of  Yedo  and  Osacca,  and  the  harbors  of  Hiogo 
and  Neegata,  should  be  postponed  for  the  reasons  more  specifically  set 
forth  in  the  latter  communication.  These  reasons  are,  in  substance, 
that  the  opening  of  the  commerce  of  Japan  to  the  western  nations  has 
had  immediate  results  very  different  from  what  were  anticipated.  The 
prices  of  articles  of  general  consumption  are  daily  advancing,  owing  to 
the  extensive  exportation,  while  but  little  is  imported,  and  the  i)eople 
of  the  humble  class,  not  being  able  to  supply  their  wants,  as  heretofore, 
attribute  this  to  foreign  trade.  Even  higher  and  wealthier  classes,  we 
are  told,  are  generally  not  favorably  disposed  towards  commerce,  so 
that  soon  there  may  be  those  who  will  condemn  tbe  abrogation  of  the 
prohibition  of  former  times  and  desire  the  re-establishment  of  the  an- 
cient law.  We  are  informed  also  that  these  results,  following  imme- 
diately upon  the  radical  change  of  policy  of  the  Government,  have 

493 


§  68.]  INTERVENTION.  [CHAP.  III. 

produced  a  very  general  uneasiness,  which  is  increased  by  referring  to 
the  stipulations  in  the  treaties  for  the  opening  of  the  ports  of  Hiogo 
and  Neegata  and  the  freedom  of  trado  at  Yedo  and  Osacca,  in  view  of 
the  approach  of  the  time  when  those  franchises  will  be  due  by  the  eflect 
of  the  treaties  with  the  United  States,  Great  Britain,  France,  Prussia, 
Russia,  and  Holland.  We  are  informed  that  it  would  be  a  matter  of 
great  difficulty  for  the  Government  to  exert  its  power  and  authority  for 
the  purpose  of  demonstrating  the  benefits  to  be  realized  at  some  future 
day,  and  thus  causing  its  subjects  to  submit  to  the  present  uneasiness 
for  some  time  longer.  In  reviewing  the  subject  in  your  dispatch  (No.  20) 
you  observe  that  you  have  seen  no  reason  to  change  your  own  view  of 
the  expediency  of  consenting  to  a  postponement  of  the  opening  of  the 
city  of  Yedo. 

"  You  remark,  also,  that  Osacca,  being  in  the  Tieji  or  Heavenly  district, 
where  the  Mikado  or  spiritual  ruler  of  Japan  resides,  it  is  probable  a 
residence  of  foreigners  there  would  be  regarded  with  dislike  by  a  por- 
tion of  the  Japanese  people;  that  Hiogo  is  simply  the  sea-port  of  Osacca, 
and  its  opening  naturally  depends  on  that  of  the  city,  while  Neegata  is 
aplace  of  minor  consideration.  Your  argument  on  the  subject  concludes 
that  the  opening  of  the  Japanese  commerce  has  temporarily  x^roduced 
a  great  increase  in  the  cost  of  subsistence  of  official  persons  enjoying 
fixed  and  limited  incomes,  while  their  salaries  have  not  yet  been  cor- 
respondingly increased.  Upon  the  whole,  you  suggest*that  discretion- 
ary power  be  given  to  you  to  act  in  concert  with  the  ministers  of  the 
other  powers  interested,  in  such  manner  as  shall  be  most  advisable  for 
the  welfare  of  both  countries. 

"We  are  sensible  of  the  very  great  perplexity  of  dealing  with  a  Gov- 
ernment whose  constitution  is  so  different  from  our  own,  and  whose  sub- 
jects have  fixed  sentiments  and  habits  so  very  peculiar.  Moreover,  we 
have  the  utmost  confidence  in  your  ability  and  discretion,  while  we 
know  that  it  might  be  hazardous  to  every  interest  already  secured  to 
substitute  a  policy  of  our  own,  adopted  at  this  distance,  for  one  which 
you  find  necessary  on  the  spot. 

"  The  President  has,  therefore,  concluded  to  confer  upon  you  the  dis- 
cretion solicited  by  you.  To  make  your  way  easier,  this  determination 
has  not  been  adopted  without  previous  consultation  here  with  the  min- 
isters before  consulted,  who  will,  of  course,  communicate  the  result  of 
the  conference  to  their  respective  Governments.  This  proceeding  will, 
for  the  present,  suspend  the  plan  of  a  naval  demonstration,  before  pro- 
posed by  the  United  States.  1  must,  however,  urgently  insist  that, 
except  in  the  extremest  necessity,  you  do  not  consent  to  any  postpone- 
ment of  any  covenant  in  the  existing  treaty,  without  first  receiving  sat- 
isfaction of  some  marked  kind  for  the  great  crime  of  the  assassination 
of  Mr.  lleusken  while  in  the  diplomatic  service  of  the  United  States. 

"  We  leave  the  form  and  mode  of  that  satisfaction  to  your  own  dis- 
cretion. It  would  be  best,  if  possible,  to  secure  the  punishment  of  the 
494 


CHAP.  III.]  JAPAN.  [§  68. 

assassins.  But  circumstauces  uuknown  to  us  must  enter  into  the  ques- 
tion, and  will  modify  your  action.  The  principle,  however,  seems  to  us 
too  important  to  be  abandoned.  If  the  western  states  can  keep  their 
representatives  safely  in  Japan,  they  can,  perha[)S,  wait  for  the  facili- 
ties stipulated  5  but  if  their  ministers  shall  bo  obliged  by  force  or  ter- 
ror to  withdraw,  all  will  be  lost  that  has,  at  such  great  cost,  been 
gained.  The  President  acknowledges  the  letter  of  the  Tycoon,  and  I 
reply  briefly  to  the  ministers  for  foreign  affairs.  Those  replies  accom- 
pany this  dispatch." 

Same  to  same,  Au<^.  1,  1861,  ibid. 

"Your  dispatch  of  June  7  (No.  21)  has  been  received. 

''It  affords  the  President  sincere  pleasure  to  know  that  the  Govern- 
ment of  the  Tycoon  has  exerted  so  much  diligence  to  bring  the  assas- 
sins of  Mr.  Heusken  to  punishment,  and  that  you  are  satisfied  that 
those  exertions  have  been  made  with  good  faith.  It  is  expected  that 
the  Government  will  not  abate  its  efforts  until  the  end  so  important  to 
a  good  understanding  between  the  two  countries  shall  have  been 
attained. 

"  The  punishment  of  the  delinquent  Yakonines,  who  were  in  attend- 
ance on  the  deceased  when  the  crime  was  committed,  is  regarded  by 
this  Government  with  high  approbation." 
Same  to  same,  Oct.  7,  lb61,  ibid. 

"  Mr.  Eobert  H.  Pruyu  has  been  appointed  to  succeed  you,  and,  I 
presume,  will  reach  Yedo  as  early  as  January  next.  You  will,  of 
course,  remain  in  the  discharge  of  official  duties  until  relieved  by  his 
arrival." 

Same  1o  same,  Oct.  21,  1861,  ibid. 

"  Generally  a  foreign  mission  is  eminently  desirable.  It  is  no  small 
honor  to  be  the  organ  of  one's  country  in  her  communications  with  a 
foreign  state.  The  opportunities  which  such  a  position  affords  to  serve 
two  nations,  and,  consequently,  the  whole  family  of  mankind,  cannot 
fail  to  awaken  a  noble  ambition  in  any  generous  and  benevolent  mind. 

"But  I  fear  you  will  find  embarrassments  in  your  mission  which  will 
make  you  regret  its  honors  and  undervalue  its  powers. 

"Japan  is  a  semi-enlightened  and  isolated  country,  only  recently  com- 
l)elled  into  treating  with  the  United  States,  as  it  has  also  been  with  the 
other  western  powers.  The  judgment  of  its  Government  has  been  con- 
vinced, and,  1  have  no  doubt,  its  sentiments  have  been  won  to  this  new 
relation  with  the  United  States  through  the  great  discretion  of  the  late 
Commodore  Perry,  and  the  wonderful  sagacity  and  patience  of  your 
predecessor,  Mr.  Harris.  But  it  is  notorious  that  the  people  of  Japan, 
especially  its  ruling  classes,  have  not  yet  reconciled  themselves  to  the 
sudden  and  complete  revolution  of  national  habits,  of  which  there  is  no 
memory  to  the  contrary  existing  among  them.     Hitherto,  as  we  have 

495 


§  68.]  INTERVENTION.  [CHAP.  UI. 

reason  to  believe,  the  Japanese  Government  and  people  have  been 
kinder  in  their  sentiments  towards  us  than  towards  other  western  na- 
tions with  whom  they  have  framed  treaties  under  the  same  circum- 
stances. 

"  But  the  time  has  now  come  for  our  trial.  When  we  gently  coerced 
Japan  into  friendship  with  us  we  were  a  united  nation.  We  did  not 
admit  that  there  then  was,  or,  indeed,  that  there  ever  had  been,  a 
stronj?«r  one  in  the  world.  Our  mercantile  and  our  naval  marine  vin- 
dicated this  high  pretension  on  every  sea,  however  distant  from  our  own 
continent.  Nine  months  have  wrought  a  great  and  melancholy  change 
in  this  proud  position.  We  are  divided  by  faction,  and  engaged  in  civil 
war.  The  national  authority  is  tasked  for  its  utmost  vigor  to  maintain 
our  flag  within  our  own  territory,  and  our  commerce  is  harassed  by  pi- 
rates of  our  own  kindred,  even  in  our  own  waters. 

"  You  know  tbat  we  have  no  doubt  of  our  success  in  putting  down 
this  unhappy  insurrection  and  restoring  the  Federal  authority.  You 
have  already  seen  how  the  Government  daily  gains  strength,  and  how 
the  insurrection  already  begins  to  decline.  But  what  will  be  the  influ- 
ence of  the  news  of  our  divisions  among  the  semi-barbarians  of  Japan, 
magnified  and  painted,  as  they  will  doubtless  be,  by  strangers,  enemies 
of  the  Eepublic,  its  prosperity,  and  its  power?  Will  the  Government 
of  Japan  retain  the  fear  which,  perhaps,  was  the  best  guarantee  of  its 
good- will  towards  us?  Will  the  misguided  faction  in  Japan,  so  hostile 
to  all  foreigners,  suffer  the  Government  to  remain  in  friendship  with  a 
nation  that  will  seem  to  them  to  have  lost  the  virtue  of  patriotism  so 
essential  to  command  the  respect  of  other  nations  ?  Already  we  have 
heard  that  the  Chinese  authorities,  informed  of  our  divisions,  havecome 
to  underrate  our  powc  r,  and  to  disregard  our  rights.  Is  this  evil  to  be 
experienced  also  in  Japan  ?  To  prevent  it  is  the  responsibility  of  ;>  our 
mission.  To  watch  and  guard  the  national  interests  there,  while  the 
storms  of  faction  are  spending  their  force  against  the  Government  at 
home,  will  be  your  chief  duty.  It  will  require  great  dignity  and  firm- 
ness, combined  with  equal  prudence  and  moderation.  I  can  give  you 
only  one  counsel :  have  faith,  under  all  circumstances,  in  the  virtue  of 
your  countrymen,  and,  consequently,  in  the  triumph  of  the  Union.  If 
you  fail  in  that  faith,  your  distrust  will  be  discovered  by  the  ill-informed 
and  feeble  minded  community  around  you.  They  will  have  no  respect 
for  a  Government  which  they  think  more  pretentious  while  it  is  weaker 
than  their  own  ;  your  mission  will  be  a  failure,  and  perhajDS  end  in  dis- 
aster and  danger.  If  you  have  that  fait'^,  you  can  impress  it  upon  the 
Government  and  people  of  Japan,  and  their  friendly  relations  towards 
us  may  be  retained  until,  our  domestic  difierences  being  ended,  we  are 
able  once  more  to  demonstrate  our  power  in  the  East,  and  establish  our 
commerce  there  on  secure  foundations.  You  will  find  no  open  questions 
for  discussion  in  your  mission.  It  is  important  to  preserve  friendly  and 
intimate  relations  with  the  representatives  of  other  western  powers  in 
496 


CHAP.  III.]  JAPAN.  [§  C8. 

Japau.  You  will  seek  uo  exclusive  advantages,  and  will  consult  freely 
with  them  upon  all  subjects,  insomuch  as  it  is  especially  necessary,  at 
this  time,  that  the  prestige  of  western  civilization  be  maintained  in  Yedo 
as  completely  as  possible.  In  short,  you  will  need  to  leave  behind  you 
all  memories  of  domestic  or  Euroi)ean  jealousies  or  ;inlipatliies,  and 
will,  by  an  ecjual,  just,  and  honorable  conduct  of  your  mission,  make 
the  simple  people  of  Japan  respect,  not  only  the  institutions  of  your 
own  country,  but  the  institutions  of  Christianity  and  of  western  civili- 
zation." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Fruyn,  Nov.  1.''),  1861.     MSS.  Inst.,  .Japan; 
Dip.  Corr.,  1861. 

"Your  dispatch  of  April  10  (No.  15)  has  been  submitted  to  the  Presi- 
dent. It  is  an  occasion  of  sincere  regret  that  the  Government  of  Japan 
has  not  been  able  to  guarantee  the  safety  of  foreigners  sojourning  in 
the  country,  and  that  it  has  thus  been  brought  to  the  necessity  of  yield- 
ing to  demands  of  indemnity  under  coercion.  I  am  bound  to  believe 
that  that  crisis  which  you  have  informed  me  was  approaching,  has  now 
actually  i)a8sed.  I  can  give  you,  therefore,  only  instructions  with  refer- 
ence to  what  may  be  expected  to  be  the  condition  of  affairs  existing  at 
the  time  when  this  communication  shall  have  reached  you.  It  is 
manifestly  the  interest  and  duty  of  all  the  western  powers  to  maintain 
harmony  and  good  accord  in  Japan.  We  have  not  only  the  right,  but 
also  good  reason,  for  supposing  that  Her  Majesty's  Government  will  not 
seek  any  conquest  or  exclusive  advantage  in  that  Emi)ire  as  a  result  of 
any  conflict  which  may  have  taken  place.  So  long  as  the  operations  of 
the  British  Government  shall  be  confined  to  the  attainment  of  the  ob- 
jects announced' in  preliminary  communications,  it  will  be  your  duty  to 
lend  to  them  all  the  moral  support  in  your  power.  And  the  naval  forces 
of  the  United  States  which  may  be  i)resent,  while  ju'otecting  the  Ameri- 
can legation  and  American  citizens  sojourning  there,  will  take  care  not 
to  hinder,  oppose,  or  embarrass  the  llritish  authorities  in  the  prosecution 
of  those  objects.  The  United  States  having  no  grievances  of  their  own 
to  complain  of  against  Japan,  will  not  unite  in  hostiities  against  that 
Government,  but  they  will,  at  the  same  time,  take  cave  not  to  disapprove 
of  or  censure,  without  just  cause,  the  measures  whicii  Great  Britain 
adopts  to  obtain  guarantees  which,  while  they  are  necessary  for  her, 
must  also  result  in  the  greater  security  of  all  the  western  natioirs."' 

Mr.  Seward,  Sec.   of  State,  to  Mr.  Pruyn,  June  2i),    lf^6:5.     MSS.   Inst.,  Japan 
Dip.  Corr.,  1863. 

"I have  the  honor  to  acknowledge  the  reception  of  your  several  dis- 
patches bearing  the  dates  and  numbers  following,  namely :  Ai>ril  ;i(>, 
i^o.  16  ;  May  1,  No.  17  ;  May  1,  No.  18 ;  May  1,  No.  !!» ;  May  L»,  No.  iM) ; 
May  3,  No.  21 ;  May  3,  No.  22;  May  4,  No.  23.  I  have  also  received 
from  George  S.  Fisher,  the  United  States  consul  at  Kanagawa,  twodis- 
S,  Mis,  102— VOL.  T_32  497 


§  G8.]  INTERVENTION.  [CHAP.  III. 

patches,  oue  of  which,  numbered  15,  bears  the  date  of  May  7,  and  the 
other,  written  under  the  date  of  May  8,  is  marked  17. 

"  Speaking-  in  a  practical  sense,  I  may  observe  that  all  these  papers 
advert  to  the  critical  condition  of  the  relations  between  the  western 
treaty  i)owers  and  Japan,  which  has  arisen  subsequently  to  the  demand 
upon  the  Tycoon  for  indemnities  which  has  been  made  by  the  British 
Government,  or,  at  least,  that  the  various  questions  which  the  dis- 
patches present  are  to  be  considered  in  view  of  that  extraordinary-  con- 
dition of  affairs. 

"  The  leave  of  absence  for  six  months,  within  the  next  year,  which 
you  have  solicited,  will  be  granted,  if  the  political  crisis  that  now  exists 
in  Japan  shall,  in  the  mean  time,  pass  off  without  i^roduciug  any  change 
inconsistent  with  or  adverse  to  the  relations  created  by  the  treaty  now 
existing  between  this  country  and  that  Empire.     *     *     * 

"I  have. carefully  read  your  two  notes  addressed  to  Mr.  Neale,  Her 
Britannic  Majesty's  charg6  d'affaires,  in  relation  to  the  demand  he  has 
made  upon  the  Tycoon's  Government,  and  it  gives  me  pleasure  to  say 
that  Ifiud  nothingin  them  to  disapprove.  Tlie  counsel  that  you  gave  Mr. 
iSTeale  was  not  obtrusive,  and  it  seems  to  me  to  have  been  quite  discreet 
as  well  as  humane.  On  the  other  hand,  this  Government,  if  it  were 
disposed  to  be  querulous,  might  well  complain  of  some  injurious  state- 
ments and  reflections  which  have  found  place  in  Mr.  Neale's  portion  of 
the  correspondence.  jSTevertheless,  the  President  permits  me  to  pass 
them  by,  for  two  reasons :  First,  the  good  faith  of  the  United  States  to- 
wards Great  Britain  and  all  the  other  treaty  powers  in  regard  to  Japan, 
is  impressed  upon  the  records  of  our  diplomatic  intercourse  with  them. 
As  yet  it  has  not  even  been  questioned ;  and  it  is  not  likely  to  be 
questioned  by  any  one  of  those  Governments,  or  by  any  agent  author- 
ized to  speak  in  their  behalf.  Secondly,  the  common  interests  of  civili- 
zation and  humanity  require  that  there  shall  be  concert  and  unity  among 
the  treaty  powers,  in  the  present  crisis,  unobstructed  by  jealousy  or  sus- 
picion, or  unkind  debate  of  any  sort.  From  all  the  papers  before  me  I 
learn  that  this  was  the  situation  of  aff"airs  at  Yedo  on  the  8th  of  May, 
namely:  That  the  British  legation  had  demanded  indemnities,  which 
must  be  conceded  on  or  before  the  21st,  or  else  that  the  British  fleet 
would  proceed  to  hostilities  against  Japan.  Secondly,  that  the  French 
naval  forces  were  prepared  to  act  in  concert  and  co-operation  with  the 
British.  Thirdly,  that  it  was  doubtful  whether  the  indemnities  would 
be  seasonably  conceded  by  the  Tycoon's  Government.  Fourthly,  that  if 
that  Government  should  conclude  to  yield  the  indemnities,  yet  that, 
under  the  auspices  of  the  Mikado  and  a  combination  of  daimios  hostile  to 
the  foreign  ]>olicy  of  the  Tycoon,  a  civil  war  was  very  likely  to  break  out. 
Fifthly,  that  a  popular  excitement  was  prevailing  which  rendered  the 
continuance  of  jieace  uncertain  in  every  event,  and  that  foreigners  were 
assaulted  and  put  in  jeopardy  of  their  lives  by  armed  bodies  of  the 
Japanese,  and  among  such  foreigners  were  several  Americans.  Sixthly, 
498 


CHAP.  III.]  JAPAN.  [§  ()8. 

it  may  be  iuferred  from  this  circumstance  that  whatever  claiuis  the 
citizens  of  the  United  States  might  have  to  friendshij),  protection,  or 
even  freedom  from  danger,  such  citizens  are  likely  to  be  confounded 
with  all  other  foreigners  in  any  uprising  or  disturbance  of  the  i)ublic 
peace.-  Seventhly,  the  Wyoming,  at  the  date  of  these  dispatches,  had 
gone  to  Hong-Kong  for  repairs.  I  learn  here,  however,  that  her  repairs 
were  comideted  on  the  27th  of  April,  and  that  she  was  then  about  to 
proceed  to  Kanagawa,  so  that  she  probably  was  there  as  early  as  the 
21st  of  May,  the  day  finally  appointed  for  the  decision  of  the  Tycoon's 
Government  to  be  communicated. 

"  I  shall  now  give  you  the  Presidents  opinion  of  your  duty,  and  that 
of  the  commander  of  the  Wyoming,  in  view  of  the  situation  which  may 
be  expected  to  be  existing  when  this  dispatch  shall  have  reached  Japan : 
Your  whole  moral  influence  must  be  exerted  to  procure  or  preserve 
peace  between  the  other  treaty  powers  and  Japan,  based,  if  necessary, 
on  a  compliance,  by  the  latter  power,  with  the  terms  prescribed  by 
them,  inasmuch  as  it  is  not  doubted  that  those  terms  will  be  demanded 
simply  with  a  view  to  the  necessary  security  of  foreigners  of  all  nations 
remaining  in  Japan. 

"  Second.  If  the  authorities  of  Japan  shall  be  able  to  excuse  them- 
selves for  the  injuries  which  Americans  may  have  suffered  at  the  hands 
of  Japanese  subjects,  and  shall  in  good  faith  have  granted  adequate 
indemnities,  or  be  proceeding  to  afford  them,  and  also  shall  be  able  to 
guarantee  the  safety  of  American  residents,  the  subject  may  rest;  and 
while  there  the  Wyoming  will  not  commit  any  hostile  act  against  the 
Japanese  Government  or  power.  But,  on  the  contrary,  if  in  your  judg- 
ment it  shall  be  necessary  for  the  Wyoming  to  use  b'er  guns,  for  the 
safety  of  the  legation  or  of  Americans  residing  in  Japan,  then  her  com- 
mander will  employ  all  necessary  force  for  that  purpose.  If  the  mem- 
bers of  the  legation,  or  of  the  consulates,  find  it  at  any  time  unsafe  to 
remain  in  Japan,  they  will,  of  course,  seek  a  safe  retreat  as  convenient 
as  possible,  and  will  report  to  this  Department. 

While  executing  these  instructions  you  will,  so  far  as  may  be  in  your 
power,  continue  to  cultivate  friendly  sentiments  on  the  part  of  the  Jap- 
anese Government,  declaring,  however,  to  them  and  to  the  representa- 
tives of  the  other  powers,  that  in  doing  so  you  are  seeking  no  exclusive 
or  distinct  advantage  for  this  Government,  but  only  the  common  inter- 
ests of  all  nations  in  that  extraordinary  country. 

"The  Secretary  of  the  Navy  will  give  all  necessary  instructions  to 
the  commander  of  the  Wyoming  in  harmony  with  the  views  of  the 
President  expressed  in  this  dispatch." 

Same  to  same,  July  7,  1P63,  ihid. 

"I  have  just  received  your  dispatches  of  May  8  (No.  24),  May  8  (No. 
25),  May  11  (No.  26),  May  12  (No.  27).     By  these  papers  I  learn  the 

499 


§  68.]  INTERVENTIOx\.  [CIIAP.  III. 

definitive  propositions  which  had  been  submitted  by  the  British  and 
French  legations  at  Yedo  to  the  Tycoon  previously  to  the  11th  of  May, 
and  their  purpose  to  adopt  coercive  measures  in  concert,  after  the  21st 
of  that  month,  if  those  propositions  should  be  rejected.  I  learn  also 
from  the  same  dispatches  the  divisions  and  distraction  there  existed  in 
the  Japanese  councils,  and  that  the  people  were  in  an  excited  condi- 
tion, which  foreboded  either  the  outbreak  of  civil  war,  or,  more  proba- 
bly, the  acceptation  of  a  foreign  war;  and,  most  painful  of  all,  the 
papers  confirm  the  accounts  which  had  before  been  received  from  the 
consul  at  Kanagawa  of  unprovoked  violence  committed  at  that  place 
upon  American  citizens  by  subjects  of  the  Tycoon. 

''It  is  a  source  of  much  satisfaction  that  the  Wyoming  had  returned 
to  that  port  in  the  midst  of  these  occurrences,  as  had  already  been 
anticipated  by  the  Government  here.  On  a  careful  review  of  all  these 
facts,  it  is  believed  that  there  is  no  necessity  to  modify  the  instructions 
which  were  given  you  in  my  dispatch  of  the  7th  instant  (^o.  43). 

"In  regard  to  the  acts  of  violence  committed  upon  the  persons  of 
American  citizens,  it  is  j)resumed  that  you  have  required  that  the 
offenders  shall  be  brought  to  punishment  by  the  Tycoon's  Government 
without  delay.  It  is  left  in  your  discretion  whether,  under  the  circum- 
stances which  shall  be  existing  when  this  dispatch  shall  reach  you,  it 
is  expedient  to  insist  upon  pecuniary  forfeitures,  or  compensations  to 
be  paid  by  the  Government  in  addition  to  the  punishment  of  the  offend- 
ers. If  you  think  it  expedient,  you  are  at  liberty  to  say  to  the  minis- 
ters of  foreign  affairs  that  the  President  has  reserved  this  question  for 
consideration  after  the  difficulties  now  existing  between  the  Govern- 
ment of  the  Tycoon  and  the  British  Government  shall  have  been 
adjusted,  and  the  peaceful  condition  of  affairs  which  prevailed  before 
the  disturbance  occurred  shall  have  been  renewed. 

"The  President  is  profoundly  sensible  of  the  inefficiency  of  the 
instructions  you  have  heretofore  received  for  your  safe  guidance  in  an 
emergency  that  was  not  foreseen,  and  could  not  be  anticipated.  When 
the  instructions  now  given  you  shall  have  arrived,  the  condition  of 
affairs  in  Japan  may  be  such  as  to  render  them  inapplicable.  Under 
these  circumstances  you  must  exercise  a  large  discretion,  governed  by 
two  primary  considerations,  namely:  First,  to  deserve  and  win  the  con- 
fidence of  the  Japanese  Government  and  people,  if  possible,  with  a  view 
to  the  common  interest  of  all  the  treaty  powers;  secondly,  to  sustain 
and  co-operate  with  the  legations  of  those  powers  in  good  faith,  so  as 
to  render  their  efforts  to  the  same  end  effective.  It  may  be  not  alto- 
gether easy  to  apply  these  two  i)rinciples  in  the  conduct  of  details. 
You  will,  however,  make  the  best  effort  to  do  so,  and  will  be  permitted 
to  judge  which  of  them  must  give  way  in  any  case  of  irreconcilable 
conflict." 

Same  to  same,  July  10,  1863,  Hid, 

m 


CHAP.  III.]  .JAPAN.  [§  G8. 

''  Your  several  dispatches  have  been  received,  whicli  bcnr  dates  mid 
DuniberH  as  follows: 

"May  26,  No.  29 ;  May  20,  No.  30;  Juue  12,  No.  31 ;  .Imic  lo,  No.  32; 
June  15,  No.  33;  June  16,  No.  34;  Juue  17,  No.  35;  June  18,  No.  36; 
June  20,  No.  37;  June  22,  No.  38;  June  23,  No.  39;  .luue  24,  No.  40; 
June  24,  No.  41 ;  and  June  24,  No.  42. 

"Due  acknowledgments  will  be  made  to  tbe  French  and  British  Gov- 
ernments for  the  hospitalities  and  sympathies  which  were  extended  to 
you  by  their  respective  ministers  on  the  occasion  of  your  being  driven 
from  your  residence  in  Yedo. 

"Your  proceedings  in  relation  to  the  claims  of  Switzerland,  Belgium, 
Austria,  Denmark,  Sweden,  and  Brazil,  to  enter  into  treaty  relations 
with  Japan,  are  approved. 

"  Several  very  important  subjects  are  presented  for  consideration  in 
your  dispatches.  First,  the  destruction  bj'  fire  ot  the  residence  of  the 
legation  at  Yedo.  Secondly,  your  removal  of  the  legation  to  Y'okohama. 
Thirdly,  the  differences  between  the  British  Government  and  that  of 
Japan.  Fourthly,  the  order  of  the  Tycoon,  requiring  foreigners  to  with 
draw  from  the  Empire.  Fifthly,  the  questions  between  Jai)an  and  the 
United  States  which  have  resulted  from  the  occurrences  thus  brouglit 
under  review.  It  will  be  proper  to  draw  into  connection  with  this  last 
topic  the  violences  which  have  been  committed  against  some  of  our  citi- 
zens, as  reported  to  this  Department  in  your  previous  comnumication, 
of  the  12th  of  May  last,  No.  28,  and  which  were  commented  upon  in  my 
instructions  of  the  10th  of  July  last. 

"  Having  taken  the  President's  directions,  I  proceed  to  consider  these 
interesting  and  important  questions. 

"First.  The  facts  submitted  by  you  raise  a  strong  presuin[)tion  that 
the  act  of  firing  the  residence  of  the  legation  was  committed  by  incen- 
diaries, with  a  purpose  at  once  political  and  hostile  to  the  United  States, 
and  that  the  Government  of  Japan  could  ])robably  have  foreseen  and 
prevented  it,  and  that  they  have  at  least  given  to  it  tacit  assent  and 
acquiescence. 

"  Secondly.  The  President  is  satisfied  that  your  removal  of  the  lega- 
t-?n  from  Yedo  to  Yokohama  was  prudent  and  wise,  in  view  of  the  cir- 
cumstances then  existing  in  Japan,  and  the  proceeding  is  a])proved. 
But  it  is  equallj  clear  that  the  Government  of  Japan  ought  to  have  so 
controlled  those  circumstances  as  to  have  rendered  the  removal  unnec- 
essary; and  that  it  is  bound  to  provide  for  your  safe  return  to  Yedo, 
and  for  the  secure  and  permanent  re-establishment  of  the  legation  in 
that  capital. 

"  Thirdly.  Your  proceedings  in  regard  to  the  controversy  which  has 
arisen  between  the  British  Government  and  that  of  Japan  appear  to 
have  been  conciliatory,  and  to  have  been  equally  just  and  fair  towards 
both  parties,  without  at  all  compromising  any  rights  oi  the  United  States, 
and  they  are  approved. 

501 


§  n^.]  INTERVENTION.  [CHAP.  III. 

"Fourthly.  It  is  with  much  regret  that  the  rresident  lias  arrived  at 
the  conclusiou  that  the  Government  of  Japan  has  failed  to  keep  its  faith, 
solemnly  pledged  by  treaty,  with  the  United  States.  This  regret  is  ren- 
dered the  more  painful  by  the  reflection  that  this  Government  has,  from 
its  first  acquaintance  vfith  Japan,  conducted  all  its  intercourse  with  the 
Tycoon  with  the  utmost  sincerity,  frankness,  and  friendship.  The  United 
States  have  constantly  conceded,  on  their  own  part,  and  sought  to  con- 
ciliate other  powers  in' their  intercourse  with  Japan.  If  our  advice  had 
been  followed,  the  dangers  which  now  threaten  the  Empire  would  have 
been  averted,  and  Japan  would  have  been  able  to  profit  by  a  peaceful 
yet  free  and  equal  intercourse  with  all  nations.  Even  now,  although 
the  Government  of  Japan  has  done  so  much  and  suffered  so  much  to  be 
done  to  alienate  and  injure  the  United  States,  the  President  is  still  dis- 
posed to  persevere  in  the  same  liberal  and  friendly  course  of  proceed- 
ings which  he  has  hitherto  pursued  in  regard  to  Japan.  But  the  friend- 
ship of  this  country  cannot  be  secured  by  the  Government  and  people 
of  Japan,  nor  would  it  be  of  any  avail,  if  the  United  States  should  fail 
to  maintain  their  own  dignity  and  self-respect  in  their  intercourse  with 
Japan  with  the  same  firmness  which  they  practice  in  regard  to  all  other 
nations. 

"  (1)  You  will,  therefore,  demand  of  the  Government  of  the  Tycoon 
prompt  payment  of  a  sum  sufficient  to  indemnify  all  the  losses  which  were 
sustained  by  yourself  and  other  members  of  the  legation  on  the  occasion 
of  the  firing  of  your  official  residence, 

"  (2)  You  will  demand  that  diligent  efforts  be  made  to  discover  the 
incendiaries  and  bring  them  to  condign  punishment. 

"  (3)  You  will  demand  proper  and  adequate  guarantees  for  your  safe 
return  to  Yedo,  and  the  permanent  re-establishment  of  the  legation  there 
without  delay. 

"  (4)  You  will  insist  on  the  full  observance  of  the  treaties  between  the 
United  States  and  Japan  in  all  the  particulars  which  have  not  been 
heretofore  waived  or  postponed  by  this  Government. 

"  (5)  You  will  demand  a  reasonable  indemnity,  to  be  fixed  by  yourself, 
for  the  injuries  which  have  been  sustained  by  any  American  citizens 
from  any  acts  of  violence  committed  against  them  by  Japanese  subjects. 
And  you  will  further  demand  that  diligent  eftbrts  be  made  by  the 
Tycoon's  Government  to  bring  the  aggressors  to  justice,  and  to  inflict 
upon  them  such  punishment  as  will  be  calculated  to  prevent  further  out- 
rages of  the  same  kind. 

"You  will  employ  the  naval  force  at  your  command  to  i)rotect  your- 
self, the  legation,  and  others  of  our  countrymen,  under  any  circum- 
stances which  may  occur;  and  you  will  inform  the  Government  of  the 
Tycoon  that  the  United  States  will,  as  they  shall  find  occasion,  send 
additional  forces  to  maintain  the  foregoing  demands. 

"  So  far  as  you  may  have  occasion  to  counsel  or  act  in  relation  to  the 
controversy  which  is  pending  between  Great  Britain  and  Japan,  you 
502 


CHAP.  IIT.]  JAPAN.  [5  C>f< 

will  be  guided  by  tlie  letter  and  spirit  of  ])revioiis  iuslriictioiis  fV(nii  this 
J)ei)artineiit. 

"  You  will  send  to  me  autheuticated  and  verified  iiccounts  of  the  losses 
which  have  been  sustained  by  yourself  and  other  members  of  the  leya- 
t'ion  by  the  burning  of  your  residence  in  Yedo,  to  the  end  that  an  apj*)!- 
cation  may  be  made  to  Congress  for  an  adequate  appropriation  for  the 
proper  indemnity. 

"It  is  hardly  necessary  to  say  that  you  will,  so  far  as  is  possible, 
execute  these  instructions  in  no  spirit  of  resentment,  or  even  of  anger ; 
but,  on  the  contrary,  while  exhibiting  the  necessary  firmness,  you  will 
make  it  manifest  to  the  Tycoon's  Government  that  the  novel  and  peril- 
ous circumstances  which  attend  its  situation  are  fully  understood  and 
ai»preciated  by  the  President,  and  that  he  desires,  with  the  utmost  sin- 
cerity and  friendship,  to  favor  the  interests  of  internal  peace  in  Japan, 
and  of  ])eace  between  that  country  and  the  several  powers  of  Europe 
and  America." 

Same  to  sjiine,  Sept.  1,  1863,  ibid. 

"  Your  interesting  dispatches  of  the  25th  of  June  (No.  23),  the  2Glh  of 
June  (No.  44),  and  the  27th  of  June  (No.  45),  have  been  submitted  to 
the  President. 

'♦  In  my  instructions  of  the  1st  of  September  (No.  46)  I  have  auticii)ated 
the  events  occurring  in  Japan,  which  these  papers  have  brought  to  my 
knowledge,  and  no  special  reply  to  them  seems  necessary,  excei)t  that 
I  shall  invite  the  attention  of  the  other  treaty  powers  to  the  suggestion 
which  you  make  concerning  the  expediency  of  demanding  a  ratification 
of  the  treaties  by  the  Mikado,  and  of  proper  demonstrations  to  securq 
that  ratification." 

Same  to  same,  Sept.  9,  1863,  ibid. 

"  I  have  the  honor  to  acknowledge  the  reception  of  your  dispatches 
of  the  24th  of  July  (No.  48),  24th  of  July  (No.  49),  and  July  25  (No.  50), 
which  furnish  the  details  of  the  assault  made  by  the  Prince  of  Nagato, 
or  the  Japanese,  upon  the  American  merchant  ship  Pembroke,  and  the 
proceedings  of  Commander  McDougall,  in  tho  United  States  steamship- 
of-war  Wyoming,  under  your  sanction,  to  redress  that  wrong.  The 
paper  further  describes  the  aggressions  committed  by  the  same  ])arties 
against  Dutch  and  British  merchantmen,  with  the  proceedings  adopted 
by  the  representatives  of  all  the  treaty  powers  in  regard  to  these  out- 
rages. Your  proceedings  connected  with  them  are  fully  and  cheerfully 
approved.  You  will,  in  all  cases,  hold  the  claims  of  this  Government 
and  of  citizens  of  the  United  States  distinct  and  separate  from  those  of 
other  Governments  and  subjects  of  other  powers.  But  this  separation 
will  not  be  expected  to  restrain  you  from  acting  with  your  colleagues, 
and  giving  them  your  moral  support ;  and  when  there  is  need,  with 
reference  to  common  defense,  or  to  save  a  common  right,  or  secure  a 
common  object,  just  and  lawful  in  itself,  the  naval  force  of  the  United 

603 


^OS.]  mrFMvmno^.  [chap.  m. 

States  will  bo  cxi)ectetl  to  co  openite  wiLli  those  of  the  other  western 
])owers. 

"  Having- been  advised  by  .your  dispatcli  of  the  8th  of  August,  which 
eanie  from  San  Fraucisco  b^'  telegraph,  that  the  Tycoon  has  returned  to 
Yedo,  and  that  your  relations  with  his  Government  are  much  im])rovcd, 
T  deem  it  inexpedient  to  restrain  your  discretion  at  present  by  special 
instructions,  but  cheerfully  wait  the  development  of  events  which  must 
have  occurred  since  that  communication  was  sent." 

Same  to  same,  Oct.  3,  1863,  ibid. 

As  to  menioramlum  in  1864  between  the  United  States  and  Great  Britain,  Fiance, 
and  the  Netherlands,  relative  to  the  coercive  measures  to  be  adopted  against 
the  Prince  of  Choshiu  in  the  Straits  of  Shiraonasaki,  see  Brit,  and  For.  St. 
Pap.  for  lS72-'73,  vol.  63. 

It  is  proper  that  the  representatives  of  the  United  States  in  Jaj^an 
should  unite  with  other  diplomatic  agents  in  that  country  in  advising 
that  the  Japanese  laws  i^rohibiting  Christianity  should  be  repealed. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Van  Valkcnbnrgh,  Oct.  7,  1867.  MSS.  Inst., 
Japan.     See  Mr.  Seward  to  Mr.  Van  Valkeuburg,  Oct.  5,  1868,  ibid. 

As  to  exclusion  of  Americans  from  the  Japanese  island  of  Amaknsa,  see  Mr. 
Fish,  Sec.  of  State,  to  Mr.  De  Long,  Sept.  15,  1870.     MSS.  Inst.,  Japan. 

"  It  is  to  me  inconceivable  that  there  are  no  courts  in  Japan.  There 
must  be  tribunals  or  officers  of  some  kind  for  settling  civil  controver- 
sies. The  sixth  article  of  the  treaty  of  1858  (Consular  Regulations,  page 
157)  refers  to  such  courts.  The  treaty,  in  efl'ect,  remits  American  cred- 
itors of  Japanese  subjects  to  such  courts,  and  on  general  principles  they 
must  accei)t  such  remedies  as  the  Government  of  Japan  provides  for  its 
own  subjects,  waiting  for  diplomatic  intervention  till  the  case  of  a  denial 
of  justice  is  established.  If  the  minister  will  instruct  his  countrymen 
on  this  subject,  he  will  be  relieved  of  the  duties  of  an  attorney  in  private 
controversies.     *     *     * 

"  It  is  not  deemed  advisable  to  propose  or  ask  of  Congress  a  measure 
providing  for  an  examiner  of  claims  in  Japan.  The  minister  should  not 
be  deprived  of  his  full  responsibility  about  urging  claims,  but  it  would 
be  we^l  for  our  ministers  everywhere  to  refrain  from  anything  like  a 
peremptory  presentation  of  a  claim  until  after  it  has  been  examined  in 
this  Department,  except  in  cases  of  urgent  emergency.  The  Govern- 
ment has  frequently  found  itself  at  quite  an  advanced  stage  of  the  dis- 
cussion of  a  doubtful  claim,  before  this  Department  had  any  informa- 
tion, or,  if  any,  inadequate  information,  for  a  judgment  upon  the  case." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  De  Long,  Jan.  21,  1871.  MSS.  Inst.,  Japan; 
For.  Eel.,  1871. 

"  I  am  not  prepared,  without  further  reflection,  to  assume  the  broad 

ground  that  the  Government  of  Japan  is  bound  to  allow  our  citizens  to 

conduct  at  the  open  ports  any  business  which  is  lawful  by  the  laws  of 

the  United  States,  or  even  any  and  every  business  which  may  be  law- 

504 


CHAP.  III.]  JAPAN.  [§  68. 

fill  by  tlic  laws  of  all  other  civilized  luitioiis.  A  couiiliy  huviiig  what  we 
regard  as  an  imperfect  civilization  may,  for  that  very  reason,  find  it 
necessary  to  establish  and  maintain  police  regulations  in  the  interest  of 
internal  order  touching  with  more  or  less  severity  upon  trade  of  various 
kinds  which  this  country  and  the  western  powers  generally  deem  it  safe 
to  leave  uutrammeled." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  De  Long,  May  11,  1871.    MSS.  Inst.,  Japan. 
As  to  distinctive  features  of  the  political  system  of  Japati,  see  Mr.  Fish,  Sec.  of 
State,  to  Mr.  De  Long,  May  '20,  1871.     MSS.  Inst.,  Japan. 

"  Foreigners  in  Japan,  as  in  any  other  country,  are  subject  to  its' 
jurisdiction,  except  so  far  as  it  is  limited  by  express  or  tacit  convention. 
All  that  has  been  sought  by  the  Christian  jiowers  is  to  withdraw  their 
subjects  from  the  operation  of  such  laws  as  conflict  with  our  ideas  of 
civilization  and  humanity,  and  to  keep  the  power  of  trying  and  punish- 
ing in  the  hands  of  their  own  representatives.  It  is  i^roper,  therefore, 
for  the  latter,  when  they  find  a  Japanese  regulation,  not  found,  in  our 
case,  in  the  statutes  or  the  common  law,  to  acquaint  their  countrymen 
with  the  fact  of  such  recognition,  and  that  it  will  be  enforced  according 
to  our  methods  and  in  our  tribunals.  This,  combining  the  sanction  of 
the  two  Governments,  avoids,  on  the  one  hand,  the  assertion  of  the  ab- 
solute immunity  of  our  citizens  from  any  Japanese  regulation,  however 
reasonable  and  necessary,  and,  on  the  other  hand,  of  an  unqualified 
legislative  power  in  our  diplomatic  and  consular  representatives — a 
l)Osition  which  it  seems  judicious  to  maintain  until  Congress  shall  act 
on  the  subject." 

Mr.  Fieh,  Sec.  of  State,  to  Mr.  Do  Long,  May  21,  1871.    MSS.  Inst.,  Japan. 

"  It  seems  to  me  within  the  legitimate  police  powers  of  the  Govern- 
ment of  Japan  to  prohibit  their  subjects  from  assembling  to  bet  upon 
the  prices  of  staple  commodities  which  the  sham  seller  does  not  intend 
to  deliver,  nor  the  buyer  to  take  into  possession.  The  circumstance 
that  an  American  citizen  presides  over  the  mock  auction  or  furnishes 
the  building  where  it  takes  place  does  not  impair  that  power." 

Mr.  Hanter,  Acting  Sec.  of  State,  to  Mr.  Do  Long,  Jnly  1,  1871.     MSS.  Inst., 
Japan. 

Concert  between  the  treaty  powers  as  to  Japan  should  be  maintained 
"  at  least  until  after  the  revision  of  the  treaties,  and  until  the  Govern- 
ment of  Japan  shall  have  exhibited  a  degree  of  i)0wer  and  capacity  to 
adopt  and  enforce  a  system  of  jurisprudence  and  judicial  administration 
in  harmony  with  that  of  the  Christian  powers,  equal  to  their  ardent  de- 
sire to  be  relieved  from  the  enforced  duties  of  extraterritoriality." 

Mr.  Fish  to  Mr.  N.  Fish,  Sept.  2,  1874.     MSS.  Inst.,  Gerin. ;  For.  Rel.,  1874. 

As  to  general  impolicy  of  joint  action  of  foreign  ministers,  see  infra,  ^  10"2. 

"Your  dispatch  of  the  5th  ultimo,  No.  1523,  in  relation  to  the  require- 

505 


§  (IS. J  TNTEnVtlNTTOK.  [cRAP.  Ttl. 

niont  of  tlu^  liiitisli  order  in  council,  of  tbo  25th  of  October,  1881,  lo 
the  effect  that  a  foreign  resitleut  in  elapau,  of  any  other  than  British 
nationality,  in  order  to  the  maintenance  by  him  of  a  civil  action  in  the 
J>ritish  consular  courts  in  that  country  aj^ainst  an  En^jlish  subject 
must  'first  obtain  and  file  in  the  court  the  consent  in  writing  of  the 
competent  authority  of  his  own  nation  to  his  submitting,  and  that  he 
does  submit,  to  the  jurisdiction  of  the  court,  and,  if  required  by  the 
court,  give  security  to  the  satisfaction  of  the  court  and  to  such  reason- 
able amount  as  the  court  directs,  by  deposit  or  otherwise,  to  pay  fees, 
damages,  costs,  and  expenses,  and  abide  by  and  perform  the  tlecision 
to  be  given  either  by  the  court  or  an  a])peal,'  has  been  received;  and 
in  connection  with  a  dispatch  of  the  21st  of  June  last,  No.  632,  from 
Consul-General  Van  Buren  on  the  same  subject,  and,  indeed,  relating 
lo  the  precise  case  which  Mr.  Stahel  presents  to  you,  has  received  at- 
tentive consideration. 

"The  general  question  was  brought  to  the  attention  of  the  Depart- 
ment by  Consul-General  Van  Buren  in  April  last,  in  his  dispatch  No. 
(J19,  and  on  the  9th  of  May  following,  Mr.  Bancroft  Davis,  Assistant 
Secretary  of  State,  replied,  by  instruction  No.  277,  to  Mr.  Van  Buren, 
that  he  conceived  the  requirement  of  the  British  order  in  council  to  be 
'fair  and  just.'  Although  the  instruction  referred  to  was  brief,  it  was, 
nevertheless,  the  result  of  careful  consideration,  as  Mr.  Davis  was"  at 
that  moment  engaged  in  examination  of  the  general  question  of  extra- 
territoriality, and  had  the  whole  subject  before  him. 

"Mr.  Stahel,  in  his  reply  to  the  British  consul,  an  extract  from  which 
General  Van  Buren  transmits  in  his  No.  032,  of  June  21  last,  says: 

"'Further,  it  appears  to  me  that  such  submission,  with  my  consent, 
to  the  jurisdiction  of  your  court,  to  have  the  eifect  which  the  order  in 
council  you  refer  to  must  have  contemplated,  would  require  me,  in  case 
of  need,  to  execute  the  judgment  of  your  court,  thus  placing  not  only 
citizens  of  the  United  States  under  the  jurisdiction  of,  but,  virtually, 
the  United  States  consular  court  officers  subject  to  the  orders  of,  Her 
Majesty's  court.' 

"  I  am  unable  to  perceive  that  any  such  result  would  follow  from  the 
permission  (for  that  is  the  proper  word)  of  the  United  States  consul  to 
a  citizen  of  his  nation,  or  from  anything  in  the  terms  of  the  order  in 
council  which  is  now  before  me.  The  citizen  of  the  United  States  suing 
a  British  subject,  in  a  British  court,  under  the  conditions  referred  to, 
submits  himself  to  the  process  of  the  court  in  which  the  proceedings 
are  had — nothing  less  and  certainly  nothing  more. 

"You  advance  two  objections  to  the  British  requirement: 

"First.  That  the  British  court  may  adjudge  dama^^es  against  the 
American  plaintiif  and  in  favor  of  the  English  defendant  in  a  claim  of 
the  latter  in  nowise  connected  with  or   growing  out  of  the  plaintift's 
cause  of  action. 
506 


CHAP.  III.]  JAPAN.  [$  C)^. 

"  I  tliiuk  you  will  at  oiico  i)erc('iv<'  that  this  ohifciion  i.>  mrt    \t\,  pro- 
vision 0  in  47  of  the  order  in  council,     lint,  secondly,  yon  add,  that  the 
court  uuiy,  in  case  the  plaintiff  fails  to  perform  its  decision  in  the  prcm 
ises,  commit  the  American  citizen  to  a  British  consular  prison  by  order 
of  a  British  consular  court. 

"With  great  deference  for  any  opinion  that  you  might  express  on 
any  legal  question,  I  must  be  permitted  to  say  that  that  appears  to  me 
to  be  a  forced  construction  of  the  order.  Except  for  contemi)t  and  to 
enforce  ^pecitic  orders  and  decrees  in  chancery,  imprisonment  cannot 
properly  be  an  element  of  ])rocedure  in  civil  actions  in  English  any 
more  than  in  American  courts.  *  *  *  It  appears  to  me  most  desir- 
able that  in  its  administration  (that  of  the  extrajudicial  system  estab- 
lished by  Christians  in  Japan)  harmony  and  comity  should  be  culti- 
vated between  the  different  foreign  nationalities,  and  that  niceties  and 
technical  views  should  be  as  far  as  possible  ignored,  thereby  facilitating 
that  justice  to  foreign  residents  in  those  countries  which  the  system  was 
*  intended  to  secure. 

"  You  will  consider  the  views  imparted  to  General  Van  Buren  by  Mr. 
Bancroft  Davis  in  the  instruction  already  referred  to,  a  coi)y  of  which 
I  inclose,  as  the  ruling  of  the  Department. 

"I  also  transmit  for  your  convenience  a  copy  of  a  letter  on  the  gen- 
eral subject,  addressed  to  the  chairman  of  the  Seimte  Committee  on 
Foreign  Kelatious,  on  the  29th  of  April  last,  by  the  Secretary  of  State." 
Mr.  JoliQ  Davis,  Acting  Sec.  of  State,  to  Mr.  Bin<rham,  Aug.  11,  188:3.     MSS. 
Inst.,  Jai)au  ;  For.  Eel.,  1882. 

"  The  English  contention  has  hitherto  been,  under  the  most-favored- 
nation  clause  of  the  treaties,  that  it  is  absolute,  and  that  even  when 
Japan  may  bargain  with  any  power  to  give  it  a  favor  for  an  equivalent, 
the  like  favor  must  be  granted  to  England  without  equivalent. 

"  The  Japanese  contention  is  the  reverse  of  this,  being  that  if  a  favor 
for  a  specific  condition  be  stipulated  with  any  one  nation,  no  other  may 
enjoy  the  favor  except  upon  identical  or  equivalent  conditions. 

"The  theory  on  which  this  Government  views  the  question  is  akin  to 
that  of  Japan.  For  example,  the  United  States  have  just  concluded  a 
commercial  treaty  with  Mexico  by  which  each  country  especially  favors 
the  other  by  putting  on  its  free  list  certain  dutiable  products.  Under 
the  favored-nation  clause  of  our  treaties  with  other  nations  we  are  not 
bound  to  give  their  products  the  benefit  of  our  free  list,  even  though 
such  country  may  not  impose  any  duty  on  the  articles  which  Mexico 
has  free-listed  in  our  favor;  but  we  would  be  willing  to  stipulate  to 
give  a  third  power  the  favor  we  give  Mexico  in  exchange  for  some 
equivalent  favor  not. general  as  towards  the  rest  of  the  world. 

"  The  British  contention  and  our  own  are  in  mauifest  conUict.  How 
far  the  German  proposition  may  cover  our  ground  depends  on  the  iuter- 

507 


§  H-S.]  INTERVENTION.  [CHAP.  III. 

]>!etatiou  to  be  given  to  the  phrase  'provisions  of  execution'  (Ausfiihr- 
iings-bestiiiimungen).  By  this,  as  appears  from  the  instruction  of  April 
4,  J.S84,  is  to  be  understood  '  jirovisions  of  a  purely  administrative  char- 
acter, or  such  as  relate  to  custom-house  business.'" 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Bingham,  June  11,  1«84,     MSS.  Inst., 

Japan. 
As  to  "  favored  nation,"  see  infra,  §  134. 

The  Government  of  the  United  States  is  not  responsible  to  that  of 
Japan  for  the  lynching  and  murder  of  a  Japanese  subject  in  Utah  by  a 
mob  which  could  not  have  been  quelled  by  due  diligence  and  energy 
by  the  Government.  In  this  case  the  Japanese  had  previously  shot  and 
killed  a  woman  '^  without  excuse  or  justification." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Kuki   Rinichi,  Oct.  18,  1884.     MSS. 
Notes,  Japan. 

The  following  Cougrtssioual  documenis  may  be  referred  to  in  this  relation  : 
Resolution  requesting  a  report  as  to  the  expediency  of  returning  the  indemnity 
fund  to  Japan,  after  deducting  all  just   claims  for  damages,  &c.,  properly 
chargeable  to  that  fund.     Dec.  15,  1875.     House  Mis.  Doc.  24,  44th  Cong.,  Ist 
sess. 
Return  of,  to  Japan  recommended ;   but  a  sufficient  sum  to  cover  the  claims  of 
naval  officers  and  crews  be  retained.     Mar.  22,  1876.     Senate  Rep.  169,  44th 
Cong.,  1st  sess. 
Resolution  of  Chamber  of  Commerce  of  New  York  favoring  a  return  of  the  fund  to 
Japan  after  paying  the  damages  sustained  by  citizens  of  the  United  States. 
Feb.  7,  1876.     Senate  and  House  Mis.  Docs.  80,  44th  Cong.,  1st  sess. 
Report  favorable  to  return  of,  to  Japan.     May  14,  1878.     Senate  Rep.  378,  46th 

Cong.,  2d  sess. 
Report  favoring  return  of,  to  Japan,  after  satisfying  certain  claims.    June  7,  1878. 
House  Rep.   913,  45th  Cong.,  2d  sess.     Mar.  31,  1880.     House  Rep.  669,  46th 
Cong.,  2d  sess.     Jan.  13,  1881.     Senate  Rep.  752,  46th  Cong.,  3d  sess. 
Favorable  report.     Jan.  31,  188i.     House  Rep..  1.38,  47th  Cong.,  1st  sess. 
Favorable  report ;  amount  of  the  accumulated  fund.     Feb.  7,  1882.     Senate  Rep. 

120,  47th  Cong.,  1st  sess. 
Resolution  declaring  the  right  of  the  United  States  to  the  indemnity  received,  and 
that  if  it  ever  be  returned  it  be  done  without  interest  or  premiums.     Jan.  6, 
1883.     Senate  Mis.  Doc.  20,  47th  Cong.,  2d  sess. 
Memorial  of  American  residents  in  Japan  asking  for  legislation  for  their  Govern- 
ment.    Mar.  22,  1882.     Senate  Mis.  Doc.  70,  47th  Cong.,  1st  sess. 
As  to  consular  jurisdiction  in  Japan,  see  further  infra,  §Q  125,  153,  and  see  also 
Mr.  Eli  T.  Sheppard's  pamphlet  on  "Extraterritorialty  "  in  reference  to 
Japan. 
The  corre.spondence  in   1850  relative  to  the  visit  of  the   Preble   to  Japan  for 
the  purpose  of  demanding  imprisoned  American  seamen,  is  given  in  House 
Ex.  Doc.  Xo.  84,  31st  Cong.,  l.st  sess. 
Documents  relating  to  official  intercourse  with,  prior  to  1852,  are  given  in  Sen- 
ate Ex.  Doc.  No.  59,  32d  Cong.,  Ist  sess. 
The  report  of  the  Secretary  of  the  Navy,  Jan.  29, 1855,  relative  to  the  naval  ex- 
pedition to  Japan,  is  given  in  Senate  Ex.  Doc.  No.  34,  33d  Cong.,  2d  sess. 
The  correspondence  prior  to  1860,  in  regard  to  missions  to  Japan,  is  given  in 
Senate  Ex.  Doc.  No.  25,  36th  Cong.,  Ist  sees. 

608 


CHAP.  III.]  KECOGlNiTlON  OF     BELLIGERENCY.  [§  CO. 

(13)  Turkey,  Tiaroo,  and  Tunis. 

§  68a. 

Citizens  of  the  Uuited  States,  in  common  with  all  other  forcifrn 
Christians,  enjoj"  the  privileges  ofextiaterritoiialitvii:  Tiiikcy.  inclndiii;^^ 
Egypt,  as  well  as  in  the  Turkish  regencies  of  Tripoli  and  Tunis,  and 
also  in  the  independent  Arabic  states  of  Morocco  and  Muscat. 

Sta,t^^s  of  Ainericans  in  Turkey,  7  Op.,  .5(5f),  dishing,  1855. 

As  to  consular  jurisdiction  in,  see  infra,  ^  12'). 
As  to  rifflit  of  asylum  in,  §  104. 
As  to  treaties  with,  §  165. 

Y.—EECOGNITION  OF  BELLIGERENCY. 
§   69. 

"It  is  a  well-known  fact  that  the  vessels  of  the  South  American  prov- 
inces were  admitted  into  the  ports  of  the  United  States  under  their  owu 
or  any  other  flags,  from  the  commencement  of  the  llevolution,  and  it  is 
equally  true  that  throughout  the  various  civil  contests  that  have  taken 
place  at  different  periods  among  the  states  that  sprung  from  that  Revo- 
lution, the  vessels  of  each  of  the  contending  parties  have  been  alike 
permitted  to  enter  the  ports  of  this  country.  It  has  never  been  held 
necessary,  as  a  preliminary  to  the  extension  of  the  rights  of  hosi)itality 
to  either,  that  the  chances  of  the  war  should  be  balanced  and  the  prob- 
ability of  eventual  success  determined.  For  this  purpose  it  has  been 
deemed  sufficient  that  the  party  had  declared  its  independence  and  at 
the  time  was  actually  maintaining  it.  Such  having  been  the  course 
hitherto  pursued  by  this  Government,  however  important  it  might  be 
to  consider  the  probability  of  success,  if  a  question  should  arise  as  to 
the  recognition  of  the  independence  of  Texan,  it  is  not  to  be  expected  that 
it  should  be  made  a  prerequisite  to  the  ineie  exercise  of  h().si)itality  im- 
l>lied  by  the  admission  of  the  vessels  of  that  country  into  our  i)orts. 
Tlie  declaration  of  neutrality  by  the  President  in  regard  to  the  existing 
contest  between  Mexico  and  Texas  was  not  intended  to  be  coiitined  to 
the  limits  of  that  province  or  of  'the  theater  of  war,'  within  which  it 
was  hardly  to  be  presumed  that  any  collision  would  occur  or  any  (|nes- 
tion  on  tiie  subject  arise,  but  it  was  designed  to  extend  everywlu-re  and 
to  include  as  well  the  United  States  and  their  ports  as  the  territories 
of  the  conflicting  parties.  The  exclusion  of  the  vessels  of  Texas,  while 
those  of  Mexico  are  admitted,  is  not  deemed  compatible  with  the  strict 
neutrality  which  it  is  the  desire  and  the  determination  of  this  Govern- 
ment to  observe  in  respect  to  the  present  contest  between  those  coun- 
tries ;  iior  is  it  thought  necessary  to  scrutinize  the  character  or  author- 
ity of  the  flag  under  which  they  may  sail,  or  the  validity  of  the  com- 
mission under  which  they  may  be  commanded,  when  the  rights  of  this 

509 


\\  G9.]  INTERVENTION.  [CHAP.  III. 

country  and  its  citizens  are  respected  and  observed.  In  this  frank  ex- 
pression of  the  views  and  policy  of  the  United  States  in  regard  to  a 
matter  of  so  much  interest  as  the  war  now  waging  between  Mexico  and 
its  revolted  province,  it  is  hoped  that  new  evideuce  will  be  perceived, 
not  only  of  the  consistency  and  impartiality  of  this  Government  in  its 
relations  with  foreign  countries,  but  of  the  sincere  desire  which  is  en- 
tertained, by  such  an  exposition  of  its  course,  to  cherish  and  perpetuate 
that  friendly  feeling,  which  will  see  in  the  scrupulous  regard  that  is 
paid  to  the  rights  of  other,  and  even  of  rival,  parties,  one  of  the  surest 
guarantees  that  its  own  will  continue  to  be  respected." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Gorostiza,  Sept.  20,  1836.     MSS.  Notes,  Mex. 

If  citizens  of  the  United  States,  enlisted  in  the  service  of  an  insur- 
gent power  whom  the  United  States  acknowledges  as  belligerent,  but 
which  is  not  so  acknowledged  by  the  parent  state,  should  be  treated 
when  cax)tured  by  the  parent  state  otherwise  than  as  prisoners  of  war, 
and  their  release,  when  demanded  by  the  United  States,  should  be 
refused,  "  consequences  of  the  most  serious  character  would  certainly 
ensue." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Thompson,  Apr.  5,  1842.  MSS.  Inst.,  Mex. 
See  further  infra,  §  381. 

For  Mr.  Webster's  Hiilsemann  note  of  Dec.  21,  18.50,  as  to  Hungarian  interven- 
tion, see  supra,  §  47. 

"  I  am  not  aware  that  in  this  country  any  solemn  proceeding,  either 
legislative  or  executive,  has  been  adopted  for  the  purpose  of  declaring 
the  status  of  an  insurrectionary  movement  abroad,  and  whether  it  is 
entitled  to  the  attributes  of  civil  war.  Unless,  indeed,  in  the  formal 
recognition  of  a  portion  of  an  Empire  seeking  to  establish  its  independ- 
ence, which,  in  fact,  does  not  so  much  admit  its  existence  as  it  an- 
nounces its  result,  at  least  so  far  as  regards  the  nation  thus  proclaiming 
its  decision.  But  that  is  the  case  of  the  admission  of  a  new  member 
into  the  family  of  nations." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Osma,  May  22,  1858.     MSS.  Notes,  Peru. 

"  INIr.  Osma  insists,  however,  that  a  civil  war  in  one  country  cannot 
\w  known  to  the  people  of  another  but  through  their  own  Government ; 
that  the  existence  or  non-existence  of  civil  war  is  a  question  not  of  fact 
but  of  law,  which  no  private  person  has  a  right  to  decide  for  himself; 
that  foreigners  must  regard  the  former  state  of  things  as  still  existing, 
unless  their  respective  Governments  have  recognized  the  change.  But 
I  am  very  clearly  of  the  opinion  that  an  American  citizen  who  goes  to 
southern  Peru  may  safely  act  upon  the  evidence  of  his  own  senses.  If 
he  sees  that  the  former  Government  has  been  expelled  or  overturned 
by  a  civil  revolution,  and  a  new  one  set  up  and  maintained  in  its  i^lace, 
he  cannot  be  molested  or  even  blamed  for  regulating  his  behavior  by 
the  laws  thus  established.  Xay,  he  has  no  choice;  the  Government  de 
facto  will  compel  his  obedience.  It  will  not  give  him  leave  to  ignore 
510 


CHAP.  lU.]  RECOGNITION  OF  BELLIGERENCY.  ^  69. 

the  matter  of  fact  while  he  waits  for  the  solution  of  a  legal  problem  at 
home.  Besides,  if  he  resists  the  authority  of  the  i^arty  in  possession  on 
the  ground  that  another  has  the  right  of  possession,  he  dej)arts  from 
his  neutrality,  and  so  violates  the  duty  he  owes  to  both  the  belligerents, 
as  well  as  to  the  laws  of  his  own  country." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Clay,  Nov.  26,  1858.     MSS.  Inst.,  Pera. 

In  the  Br.  and  For.  St.  Pap.  for  1659-'60,  1126,  vol.  50,  will  be  found  the  cor- 
respondence of  the  United  States  with  Peru,  relative  to  the  recognition  by 
the  United  States  of  the  existence  of  civil  war  between  Vivanco  and  Cas- 
tillo.    See  also  same  work  for  1860-'61,  vol.  51. 

In  an  article  entitled  "A  famous  diplomatic  dispatch,"  in  the  Xorth 
American  Review  for  April,  18S6,  Mr.  Kiee  gives  an  account  of  the  in- 
struction of  May  21,  38G1,  .sent  by  Mr.  Seward  to  Mr.  Adams.  United 
States  minister  at  Loudon,  in  relation  to  the  recognition  by  Great  Britain 
of  the  belligerency  of  the  Southern  Confederacy.  Mr.  Lincoln's  inter- 
lineations and  corrections  in  Mr.  Seward's  draft,  a  fac-similie  of  which 
accompanies  the  article,  show  with  what  care  he  avoided  all  unneces- 
sary disclosures  of  policy,  and  all  remarks  which  might  give  unneces- 
sary offense  or  provoke  hostility. 

As  to  protests  against  recognition  by  Great  Britain  and  France  of  belligerency 
of  Confederate  States,  see  Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  May 
30,  1661.  MS.S.  lust.,  France.  See  also  same  to  same,  June  17,  July  6,  Oct. 
30,  1861;  Apr.  1.5,  1862;  Mr.  Seward  to  Mr.  Adams,  Aug.  10,  1865.  MSS. 
In6t.,Gr.  Brit. 

The  recognition  by  Great  Britain  of  Southern  belligerency  is  discossed  by  Gold- 
win  Smith  in  13  Macmillan's  Mag.,  163. 

'•  Mr.  Adams,  minister  in  London,  in  adverting,  June  14, 1861,  to  the 
concession  of  belligerent  rights  to  the  Confederates,  remarks :  'At  any 
rate  there  was  one  compensation,  the  act  had  released  the  Government 
of  the  United  States  from  responsibility  lor  any  misdeeds  of  the  rebels 
towards  Great  Britain.  If  any  of  their  people  should  capture  or  mal- 
treat a  British  vessel  on  the  ocean,  the  reclamation  must  be  made  only 
on  those  who  had  authorized  the  wrong.  The  United  States  would  not 
be  liable.'     Papers  relating  to  Foreign  Affairs,  &c.,  p.  89." 

Lawrence's  Wheaton  (ed.  1863),  44.  See  on  this  point  infra  rulings  in  this  sec- 
tion, and  also  ^5  223^. 

"  Your  dispatch  of  April  9,  Xo.  297,  has  been  submitted  to  the  Presi- 
dent. 

"  You  have  rightly  interpreted  to  Mr.  Drouyii  de  I'Huys  our  views 
concerning  the  issue  of  letters  of  marque.  The  unrestrained  issue  of 
piratical  vessels  from  Europe  todestroy  our  commerce,  break  our  block- 
ade of  insurrectionary  ports,  and  invade  our  loyal  coast  would  practi- 
cally be  an  European  war  against  the  United  St;ites  none  the  less  real 
or  dangerous  for  wanting  the  sanction  of  a  formal  declaration.  Congress 
has  committed  to  the  President,  as  a  weapon  of  national  defense,  the 
authority  to  issue  letters  of  marque.  We  know  that  it  is  a  weapon  that 
cannot  be  handled  without  great  danger  of  annoyance  to  the  neutrals 
and  friendly  commercial  powers.  But  even  that  hazard  must  be  in- 
curred rather  than  quietly  submit  to  the  apprehended  greater  evil. 


§  69  ]  INTERVENTION.  [CHAP,  III. 

There  are  now,  as  you  must  have  observed,  indications  that  that  appre- 
hended greater  evil  may  be  averted  through  the  exercise  of  a  restraining 
power  over  the  enemies  of  the  United  States  in  Great  Britain.  Hope 
ful  of  such  a  result,  we  forbear  from  the  issue  of  letters  of  marque,  and 
are  content  to  have  the  weapon  ready  for  use  if  it  shall  become  abso- 
lutely necessary.     (See  infra,  §  385.) 

"  It  gives  me  great  pleasure  to  acknowledge  that,  beyond  what  we 
deem  the  original  error  of  France  in  recognizing,  unnecessarily-,  as  we 
think,  the  insurgents  as  a  belligerent,  we  have  every  reason  to  appre- 
ciate the  just  and  impartial  observance  of  neutrality  which  has  been 
practiced  in  the  ports  and  harbors  of  France  by  the  Government  of  the 
Emperor.  In  any  case  it  will  be  hereafter,  as  it  has  been  hitherto,  a 
pleasng  duty  to  conduct  all  our  belligerent  proceedings  so  as  to  inflict 
no  wrong  or  injury  upon  the  Government  or  the  people  of  the  French 
Empire. 

"Tou  have  also  done  the  country  a  good  service  in  explaining,  in 
your  conversations  with  Mr.  Drouyn  de  I'Huys,  the  manner  in  which 
we  have  heretofore  maintained  our  neutrality  in  foreign  wars,  by  enforc- 
ing our  enlistment  laws,  which  are  in  all  respects  the  same  as  those  of 
Great  Britain. 

"The  President  has  received  with  much  interest  Mr.  Drouyn  de 
I'Huys's  exposition  of  the  policy  of  the  French  Government  in  regard 
to  the  insurrection  in  Poland.  The  Emperor  of  Eussia  seems  to  us  to 
have  adopted  a  policy  of  beneficent  reform  in  domestic  administration. 
His  known  sagacity  and  his  good  dispositions  encourage  a  hope  that 
Poland  will  not  be  denied  a  just  share  of  the  imperial  consideration  if,  as 
seems  now  to  be  generally  expected  in  Europe,  the  revolution  attempted 
by  her  heroic  people  shall  be  suppressed. 

"  I  do  not  care  to  speak  often  ui)on  the  war  of  France  against  Mexico'. 
The  President  confidingly  believes  that  the  Emperor  has  no  purpose  of 
assuming,  in  the  event  of  success,  the  Government  of  that  Republic. 
Difficult  as  the  exercise  of  self-government  there  has  i)roved  to  be,  it  is, 
nevertheless,  quite  certain  that  the  attempt  to  maintain  foreign  author- 
ity there  would  encounter  insurmountable  embarrassment.  The  country 
possesses  immense,  practically  inexhaustible,  resources.  They  invite 
foreign  labor  and  capital  from  all  foreign  countries  to  become  natural- 
ized and  incorporated  with  the  resources  of  the  country  and  of  the  con- 
tinent, while  all  attempts  to  acquire  them  by  force  must  meet  with  the 
most  annoying  and  injurious  hindrance  and  resistance.  This  is  equally 
true  of  Mexico  and  of.  every  portion  of  the  American  continent.  It 
is  more  than  a  hundred  years  since  any  foreign  state  has  success- 
fully i)l;uited  a  new  colony  in  America,  or  even  strengthened  its  hold 
upon  any  one  previously  existing  here.     Through  all  the  social  disturtj- 

513 


CHAP.  III.]  RECOGNITION  OF  BELLIGERENCY.  [§  69. 

ances  which  attend  a  change  from  the  colonial  state  to  independence, 
and  the  substitution  of  the  democratic  for  the  monarciiical  system  of 
government,  it  ^still  seems  to  us  that  the  Spanish-Ainericim  states  are 
stoadil}' advancing  towards  the  establishment  of  permanent  institutions 
of  self  government.  It  is  the  interest  of  the  United  States  to  favor  this 
l)rogress,  and  to  commend  it  to  the  patronage  of  other  nations.  It  is 
equally  the  interest  of  all  other  nations,  if,  as  we  confidently  believe, 
this  progress  offers  to  mankind  the  speediest  and  surest  means  of  ren- 
dering available  to  them  the  natural  treasures  of  America." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  Apr.  24,  1863.    MSS.  lust.,  France. 
Dip.  Corr.,  1863. 

"  This  Government  insists  now  in  these  cases,  as  it  insisted  in  the 
beginning  of  our  domestic  strife,  that  the  decisions  of  the  Emi)eror's 
Government,  like  those  of  other  maritime  powers,  by  which  the  insur- 
gents of  this  country,  without  a  port  or  a  ship  or  a  court  of  admiralty, 
are  recognized  by  France  as  a  naval  belligerent,  are  in  derogation  of 
the  law  of  nations  and  injurious  to  the  dignity  and  sovereignty  of  the 
United  States,  that  they  have  never  approved  or  acquiesced  in  those 
decrees,  and  that  they  regard  these  late  proceedings  in  relation  to  the 
Florida  and  Georgia,  like  those  of  a  similar  character  which  have  oc- 
curred in  previous  cases,  as  just  subjects  of  complaint.  The  same 
views  are  entertained  so  far  as  they  apply  to  the  new  maritime  regula- 
tions. We  claim  that  we  are  entitled  to  have  our  national  vessels  re- 
ceived in  French  ports  with  the  same  courtesy  that  we  ourselves  extend 
to  French  ships  of  war,  and  that  all  real  or  pretended  insurgent  vessels 
ought  to  be  altogether  excluded  from  French  i)orts.  We  expect  the 
time  to  come,  and  we  believe  it  is  not  distant,  when  this  claim  will  be 
acknowledged  by  France  to  be  both  reasonable  and  just." 

Mr.  Seward,  Soc.  of  State,  to  Mr.  Dayton,  Mar.  21,  1864.     MSS.  lust.,  France. 
See  farther,  as  to  recoguitiouof  Confederate  belligerency,  Senate  Ex.  Doc.  No. 

11,  41st  Cong.,  1st  80SS.  ;  and  see  also  2  Phill.  Int.  Law  (3d  ed.),  23. 
As  sustaining  the  recognition  of  the  Confederate  Government  as  belligerent, 

see  speech  of  Sir  George  Come  wall  Lewis,  Oct.  17, 1862,  cited  in  1  Lawrence 

com.  snr  droit  int.,  200. 

"  The  President  does  not  deny,  on  the  contrary  he  maintains,  that 
every  sovereign  power  decides  for  itself,  on  its  responsibility,  the  ques- 
tion whether  or  not  it  will,  at  a  given  time,  accord  the  status  of  belliger- 
ency- to  the  insurgent  subjects  of  another  power,  as  also  the  larger  ques- 
tion of  the  independence  of  such  subjects  and  their  accession  to  the 
family  of  sovereign  states. 

"  But  the  rightfulness  of  such  an  act  depends  on  the  occasion  and 
the  circumstances,  and  it  is  an  act,  like  the  sovereign  act  of  war,  which 
the  morality  of  the  public  law  and  practice  requires  should  be  deliber- 
ate, seasonable,  and  just,  in  reference  to  surrounding  facts ;  national 
belligerency,  indeed,  Uke  national  independence,  being  but  an  existing 
S.  Mis.  J62— YOL.  I 33  513 


§  69.]  INTERVENTION.  [CHAP.  III. 

fact,  officially  recognized  as  such,  without  which  such  a  declaration  is 
only  the  indirect  manifestation  of  a  particular  line  of  policy." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Motley,  Sept.  25,  1869.     MSS.  :^n8t.,  Gr.  Brit. 

"  But  circumstances  might  arise  to  call  for  it.  A  ship  of  the  insur- 
gents might  appear  in  the  port  of  the  neutral,  or  a  collision  might 
occur  at  sea,  imposing  on  the  neutral  the  necessitj'  to  act.  Or  actual 
hostility  might  have  continued  to  rage  in  the  theater  of  insurgent  war, 
combat  after  combat  might  have  been  fought  for  such  a  period  of  time, 
a  mass  of  men  may  have  engaged  in  actual  war  until  they  should  have 
acquired  the  consistency  of  military  power,  to  repeat  the  idea  of  Mr. 
Canning,  so  as  evidently  to  constitute  the  fact  of  belligerency,  and  to 
justify  the  recognition  by  the  neutral.  Or  the  nearness  of  the  seat  of 
hostilities  to  the  neutral  may  compel  the  latter  to  act;  it  might  be  his 
sovereign  duty  to  act,  however  inconvenient  such  action  should  be  to 
the  legitimate  Government." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Motley,  Sept.  25,  1869.     MSS.  lust.,  Gr.  Brit. 

"The  question  of  according  or  withholding  rights  of  belligerency 
must  be  judged,  in  every  case,  in  view  of  the  particular  attending  facts. 
*  *  *  This  conflict  must  be  one  which  will  be  recognized  in  the  sense 
of  international  law  as  war.  Belligerency,  too,  is  a  fact.  The  mere  ex- 
istence of  contending  armed  bodies,  and  their  occasional  conflicts,  do 
not  constitute  war  in  the  sense  referred  to." 
President  Grant,  Seventh  Annual  Message,  1875. 

Prior  to  the  acknowledgment  by  the  United  States  of  the  independ- 
ence of  the  southern  Spanish-American  colonies,  informal  agents  were 
sent  to  them  by  the  President  (see  supra,  §47);  but  (li])lomatic  agents 
from  several  of  these  states  were  refused  at  the  same  time  ofiicial  diplo- 
matic recognition  at  Washington,  though  personally  received. 

See  Abdy's  Kent,  135;  Dana's  Wheaton,  note  121. 

Mr.  Seward  (Ex.  Doc.  20,  39th  Cong.,  cited  in  Dana's  Wheaton,  note 
41;  Mr.  Seward  to  Mr.  Bigelow,  Mar.  13,  1865,  Dip.  Corr.,  1805,  pt.  3, 
378)  took  the  ground  that  the  United  States  Government  would  decline 
to  bold  intercourse,  ofiicial  or  unofficial,  with  agents  from  insurgents 
against  Governments  with  whom  the  United  States  were  at  peace.  But 
when  a  belligerent  is  recognized  as  such,  this  implies  an  intercourse, 
at  least  between  agents,  in  reference  to  terms  of  belligerency.  This  in- 
tercourse may  be  very  informal,  and,  when  between  belligerents  who  are 
parties  to  a  civil  war,  may  for  a  time  be  limited  to  negotiations  *for 
exchange  of  prisoners  and  for  cognate  objects.  But,  as  in  the  case  of 
the  late  civil  war  in  the  United  States,  the  sovereign  against  whom  the 
insurrection  is  directed,  will,  from  the  necessity  of  the  case,  hear  inform- 
ally and  unofficially  agents  from  belligerent  insurgents  as  to  terms  of 
surrender. 

As  to  reception,  informallj-,  by  Mr.  Seward  of  agents  of  the  unrecognized  Gov- 
ernment of  Maximilian,  see  infra,  ^  70.  See  also  Mr.  Blaine,  Sec.  of  State, 
to  Mr.  Fish,  Apr.  5,  1881.     MSS,  Inst.,  Switz,  quoted  infra,  $  70, 

W4 


CHAP.  III.]  RECOGNITION  OF  BELLIGERENCY.  [§  G9. 

Admitting  a  sovereign,  who  is  endeavoring  to  reduce  liis  revolted 
subjects  to  obedience,  to  possess  both  sovereign  and  belligerent  lights, 
and  to  be  capable  of  acting  in  either  character,  the  manner  in  wliicli  he 
acts  must  determine  the  character  of  the  act;  i.  e.,  whether  it  is  an  ex- 
ercise of  belligerent  rights  or  exclusively  of  his  sovereign  power. 

Rose  V.  Himely,  4  Cranch,  241. 

"A  civil  war,"  said  Judge  Grier,  giving  the  opinion  of  the  Sni)reme 
Court  in  the  Prize  Cases,  2  Black,  C67,  "  is  never  solemnly  declared;  it 
becomes  such  by  its  accidents — the  number,  power,  and  organization 
of  the  persons  who  originate  and  carry  it  on.  When  the  party  in  rebel- 
lion occupy  and  hold  in  a  hostile  manner  a  certain  ])ortiou  of  territory; 
have  declared  their  independence;  have  cast  off  their  allegiance;  have 
organized  armies ;  have  commenced  hostilities  against  their  former 
sovereign,  the  world  acknowledges  them  as  belligerents  and  the  contest 
a  war." 

"To  the  Confederate  Government  was  conceded,  in  the  interest  of 
humanity,  and  to  prevent  the  cruelties  of  reprisals  and  retaliation,  such 
belligerent  rights  as  belonged,  under  the  law  of  nations,  to  the  armies 
of  independent  Governments  engaged  in  war  against  each  other.  The 
Confederate  States  were  belligerents  in  the  sense  attached  to  that  word 
by  the  law  of  nations." 

Hiirlan,  J.,  Ford  v.  Surget,  97  U.  S.,  594. 

As  to  recognition  by  the  United  States  of  the  belligerency  of  foreign  insurgents, 

see  the  Divina  Pastora,  4  Wheat.,  52  ;  the  Neustra  Senora,  ibid.,  497. 
That  this  applies  to  the  question  of  the  recognition  of  a  State  government  by 

the  Federal  Government,  see  Luther  v.  Borden,  7  Howard,  1. 

"  There  may  be  a  difficulty  in  ascertaining  when  the  fact  of  war 
begins,  and  this  difficulty  is  the  greater  in  cases  of  insurrection  or  revolt, 
where  many  of  the  antecedents  and  premonitory  tokens  of  war  are 
wanting,  where  an  insurrection  may  be  of  little  account  and  easily  sup- 
pressed, and  where  war  bursts  out  full-blown,  it  may  be,  at  once.  Our 
Government  has  more  than  once  i^rofessed  to  govern  its  action  by  the 
following  criteria  expressed  in  Mr.  Monroe's  words  relating  to  the 
Spanish  South  American  revolts  :  'As  soon  as  the  movement  assumes  ■ 
such  a  steady  and  consistent  form  as  to  make  the  success  of  the  prov- 
inces i)robable,  the  rights  to  which  they  were  entitled  by  the  law  of 
nations,  as  equal  parties  to  a  civil  war,  have  been  extended  to  them.' 
But  this  rule  breaks  down  in  several  places.  The  probability  is  a 
creature  of  the  mind,  something  merely  subjective,  and  ought  not  to 
enter  into  a  detinition  of  what  a  nation  ought  to  do.  Again,  the  success 
does  not  depend  on  steadiness  and  consistency  of  form  only,  but  on 
relative  strength  of  the  parties.  If  you  make  i)robability  of  success  the 
criterion  of  right  in  the  case,  you  have  to  weigh  other  circumstances 
before  being  able  to  judge  wliich  is  most  probabh',  success  or  defeat. 
Would  you,  if  you  conceded  belligerent  rights,  withdraw  the  concession 
whenever  success  ceased  to  be  probable  ?  And,  still  further,  such  prov- 
inces in  revolt  are  not  entitled  by  the  law  of  nations  to  rights  as  equal 
parties  to  a  civil  war.  Thej'  have  properly  no  rights,  and  the  conces- 
sion of  belligerency  is  not  made  on  their  account^  but  on  account  of  con- 

515 


§  CO.]  INTERVENTION.  [CHAP.  III. 

siderations  of  policy  on  the  part  of  the  state  itself  which  declares  them 
such,  or  on  grounds  of  humanity. 

'•  Trcitcdcnts  are  to  be  drawn  chiefly  from  modern  times.  The  revolt 
of  the  low  countries  was  hardly  an  analogous  case,  for  they  were  states 
having  their  especial  charters,  not  connected  with  Si)aiu,  except  so  far 
as  the  King  of  Spain  was  their  suzerain.  In  our  Revolutionary  war, 
precedent  was  not  all  on  one  side.  Great  Britain  stoutly  declared  Paul 
Jones  to  be  a  pirate,  because  he  was  a  British  subject  under  commission 
from  revolting  colonies,  and  Denmark  agreed  to  this.  In  the  South 
American  revolutions,  the  concessions  of  belligerent  rights  were  given 
freely  by  neutrals,  most  freely  by  the  United  States  ;  and,  as  for  proc- 
lamations, our  Government  went  so  far  as  to  issue  one,  in  1838,  '  for 
the  prevention  of  unlawful  interference  in  the  civil  war  in  Canada,' 
where  no  civil  or  military  organization  had  been  set  up.  The  true  time 
for  issuing  such  a  declaration,  if  it  is  best  to  issue  it  "at  all,  is  when  a 
revolt  has  its  organized  Government  prepared  by  law  for  war  on  either 
element  or  on  both,  and  when  some  act,  involving  the  open  intention 
and  the  fact  of  war,  has  been  performed  by  one  or  both  of  the  parties. 
Here  are  two  facts,  the  one  political,  the  other  pertaining  to  the  acts  of 
a  political  body.  The  fact  of  war  is  either  a  declaration  of  w^ar  or  some 
other  implying  it,  like  a  proclamation  of  blockade,  or,  it  may  be,  actual 
armed  contest. 

"  Was  there,  then,  a  state  of  war  when  the  British  proclamation  of 
neutrality  was  given  to  the  world,  or  did  the  facts  of  the  case  justify 
the  British  Government  in  the  sui)position  that  such  a  state  of  war  ex- 
isted ?  Here  everything  depends  on  facts  and  on  opinions  derived  from 
facts.  We  find  opinions  expressed  by  eminent  men  among  ourselves 
in  the  first  half  of  May,  1861,  that  war  had  already  begun,  which  some 
of  them  conceived  of  as  beginning  with  the  attack  on  Fort  Sumter.  We 
find  a  number  of  States  seceding  from  the  Union,  whose  territories  made 
a  continuous  whole,  which  formed  a  constitution,  and  chose  public  offi- 
cers, a  President  among  the  rest.  This  President  made  a  proclamation 
touching  letters  of  marque  and  reprisal,  and  told  his  congress  that  two 
vessels  had  been  purchased  for  naval  warfare.  We  find  next  two  proc- 
lamations of  the  President  of  the  United  States,  one  of  April  15,  call- 
ing for  a  large  force  of  the  militia  of  the  States,  and  another  of  April 
19,  after  the  proclamation  of  the  Confederate  President  inviting  letters 
of  marque  and  reprisal  had  become  known  at  Washington,  announcing 
an  intention  to  set  on  foot  a  blockade.  On  the  6th  of  May,  the  South- 
ern Congress  sanctioned  the  proclamation  concerning  letters  of  marque, 
recognized  a  state  of  war,  and  legislated  on  cruisers  and  capture.  We 
l)ass  over  many  acts  of  violence,  such  as  seizures  of  forts  and  other 
])ublic  property  within  the  Confederate  States.  Intelligence  of  Presi- 
dent Lincoln's  blockade  reached  London  on  the  evening  of  May  2. 
Copies  of  it  were  there  received  between  the  5th  of  May  and  the  11th. 
On  the  13th  the  Queen's  proclamation  of  neutrality  was  issued. 

"  The  President's  i)roclamation  of  blockade  announced  a  measure 
which  might  have  important  international  consequences.  It  was,  in 
fact,  a  declaration  of  a  state  of  war  on  the  sea.  '  He  deemed  it  advis- 
able,' he  says,  '  to  set  on  foot  a  blockade,  in  pursuance  of  the  laws  of 
the  United  States  and  of  the  laws  of  nations.'  And  vessels  exposing 
themselves  to  penalty  for  violating  the  blockade  would  be  '  captured 
and  sent  to  the  nearest  convenient  port,  for  such  proceeding  against 
them  and  their  carjjoes,  as  prize,  as  might  be  deemed  advisable.'  Sev- 
eral neutral  vessels  were  captured  between  April  19  and  July  13,  on 

516 


CHAP.  III.]  tiiECOGNlTlON  OP  BELLIGERENCY.  [§  69. 

whirli  last  day  Congress  sauctioiietl  the  proceedings  of  tlie  Government* 
The  validity  of  the  captures  came  before  the  Siii)reme  Court,  and  the 
question  when  the  war  began  became  a  very  imjjortant  one.  The  conrt 
decided  that  the  President  had  aright,,/Mre  ^d//,  to  institute  a  blockade 
of  i)orts  in  the  possession  of  the  rebellious  States,  and  that  blockade 
was  an  act  of  war. 

"  It  would  seem,  then,  that  if  the  British  Government  erred  in  think- 
ing that  the  war  begau  as  early  as  Mr.  Lincoln's  proclanuition  in  ques- 
tion, they  erred  in  company  with  our  Supreme  Conrt.  (See  the  'Ala- 
bama question,'  New  Englander  for  July,  18G9 ;  Black's  Keports,  ii, 
035  ff.;  Dana  on  Wheaton,  374,  375;  Lawrence's  Wheaton  (2d  ed., 
sni)plem.),  p.  13;  and  Pomeroy's  Introd.  to  Constit.  Law,  §§  447-453.)" 

Woolsey,  Int.  Law,  app.  iii,  note  19. 

"The  occasion  for  the  accordance  of  belligerent  rights  arises  when  a 
civil  conflict  exists  within  a  foreign  state.  The  reason  which  requires 
and  can  alone  justify  this  step  by  the  Government  of  another  country 
is  that  its  own  rights  and  interests  are  so  far  aflected  as  to  require  a 
definition  of  its  own  relations  to  the  parties.  Where  a  parent  Govern- 
ment is  seeking  to  subdue  an  insurrection  by  municipal  force,  and  the 
insurgents  claim  a  political  nationality  and  belligerent  rights  which  the 
parent  Government  does  not  concede,  a  recognition  by  a  foreign  state 
of  full  belligerent  rights,  if  not  justified  by  necessity,  is  a  gratuitous 
demonstration  of  moral  support  to  the  rebellion,  and  of  censure  upon 
the  parent  Government.  But  the  situation  of  a  foreign  state  with  refer- 
ence to  the  contests,  and  the  condition  of  affairs  between  the  contend- 
ing parties,  may  be  such  as  to  justify  this  act.  It  is  important,  there- 
fore, to  determine  what  state  of  affairs,  and  what  relations  of  the  foreign 
state,  justify  the  recognition. 

"  It  is  certain  that  the  state  of  things  between  the  parent  state  and 
insurgents  must  amount,  in  fact,  to  a  ira>\  in  the  sense  of  international 
law — that  is,  powers  and  rights  of  war  must  be  in  actual  exercise; 
otherwise  the  recognition  is  falsified,  for  the  recognition  is  of  a  fact. 
The  tests  to  determine  the  question  are  various,  and  iar  more  decisive 
where  there  is  maritime  war  and  commercial  relations  with  foreigners. 
Among  the  tests  are  the  existence  of  a  de facto  political  organization 
of  the  Insurgents  sufficient  in  character,  population,  and  resources  to 
constitute  it,  if  left  to  itself,  a  state  among  the  nations,  reasonably  capa- 
ble of  discharging  the  duties  of  a  state ;  the  actual  employment  of  mil- 
itary forces  on  each  side,  acting  in  accordance  with  the  rules  and  cus- 
toms of  war,  such  as  the  use  of  flags  of  truce,  cartels,  exchange  of 
prisoners,  and  the  treatment  of  captured  insurgents  by  the  parent  state 
as  prisoners  of  war;  and,  at  sea,  employment  by  the  insurgents  of  com- 
missioned cruisers,  and  the  exercise  by  the  parent  Government  of  the 
rights  of  blockade  of  insurgent  ports  against  neutral  commerce,  and  of 
stopping  and  searching  neutral  vessels  at  sea.  If  all  these  elements 
exist,  the  condition  of  things  is  undoubtedly  war  ;  and  it  may  be  war 
before  they  are  all  ripened  into  activity. 

"As  to  the  relation  of  the  foreign  state  to  the  contest,  if  it  is  solely 
on  laud,  and  the  foreign  state  is  not  contiguous,  it  is  difficult  to  imagine 
a  call  for  the  recognition.  If,  for  instance,  the  United  States  should 
formally  recognize  belligerent  rights  in  an  insurgent  community  at  the 
center  of  Europe,  with  no  sea-])orts,  it  would  require  a  hardly  supposable 
necessity  to  make  it  else  than  a  mere  demonstration  of  moral  support. 
But  a  case  may  arise  where  a  foreign  state  must  decide  whether  to  hold 

517 


\^  no.]  INTERVENTION.  [CHAP.  III. 

the  pfirent  state  responsible  for  acts  done  by  the  insurgents,  or  to  deal 
with  the  insurgents  as  a  de  facto  (government.  (Mr.  Canning  to  Lord 
(hanville  on  tlie  Greek  war,  June  22,  182G.)  If  tlie  foreign  state  recog- 
nizes belligerency  in  the  insurgents,  it  releaees  the  i)arent  state  from 
responsibility  for  whatever  may  be  done  by  the  insurgents,  or  not  done 
by  the  i)arent  state  where  the  insurgent  power  extends.  (Mr.  Adams 
to  Mr.  Seward,  June  11, 1801,  Di]).  Oorr.,  105.)  In  a  contest  wholly  ui)on 
land,  a  contiguous  state  may  be  obliged  to  make  the  decision  whether 
or  not  to  regard  it  as  a  war;  but,  in  practice,  this  has  not  been  done  by 
a  general  and  i)rospective  declaration,  but  b}"  actual  treatment  of  (;ases 
as  they  ari.se.  Where  the  insurgents  and  the  parent  state  are  maritime, 
and  the  foreign  nation  has  extensive  commercial  relations  and  trade  at 
the  ])orts  of  both,  and  the  foreign  nation  and  either  or  both  of  the  con- 
tending ])arties  have  considerable  naval  force,  and  the  domestic  contest 
must  extend  itself  over  the  sea,  then  the  relations  of  the  foreign  state 
to  this  contest  are  far  different. 

"  In  such  a  state  of  things  the  liability  to  political  complications, 
and  the  questions  of  right  and  duty  to  be  decided  at  once,  usually  away 
from  home,  by  private  citizens  or  naval  officers,  seem  to  require  an 
authoritative  and  general  decision  as  to  the  status  of  the  three  parties 
involved.  If  the  contest  is  a  war,  all  foreign  citizens  and  officers, 
whether  executive  or  judicial,  are  to  follow  one  line  of  conduct;  if  it 
is  not  a  war,  they  are  to  follow  a  totally  different  line.  If  it  is  a  war 
the  commissioned  cruisers  of  both  sides  may  stop,  search,  and  capture 
the  foreign  merchant  vessel,  and  that  vessel  must  make  no  resistance 
and  must  submit  to  adjudication  by  a  prize  court ;  if  it  is  not  a  war, 
the  cruisers  of  neither  party  can  stop  or  search  the  foreign  merchant 
vessel ;  and  that  vessel  may  resist  all  attempts  in  that  direction,  and 
the  ships-of-war  of  the  foreign  state  may  attack  and  capture  any  cruiser 
persisting  in  the  attempt.  If  it  is  war,  foreign  nations  must  await  the 
adjudication  of  prize  tribunals ;  if  it  is  not  war,  no  such  tribunal  can  be 
opened.  If  it  is  war,  the  pareit  state  may  institute  a  blockade  j'wre 
gentium  of  the  insurgent  ports,  which  foreigners  must  respect;  but  if 
it  is  not  a  war,  foreign  nations  having  large  commercial  iiitercourse  with 
the  country  will  not  respect  a  closing  of  insurgent  ports  by  paper  de- 
crees only.  If  it  is  a  war,  the  insurgent  cruisers  are. to  be  treated  by 
foieign  citizens  and  officials,  at  sea  and  in  port,  as  lawful  belligerents; 
if  it  is  not  a  war,  those  cruisers  are  pirates,  and  may  be  treated  as  such. 
If  it  is  a  war,  the  rules  and  risks  respecting  carrying  contraband,  or 
disi)atches,  or  military  persons,  come  into  play;  if  it  is  not  war,  they 
do  not.  Within  foreign  jurisdiction,  if  it  is  a  war,  acts  of  the  insur- 
gents in  the  way  of  preparation  and  equipments  for  hostility  may  be 
breaches  of  neutrality  laws;  while,  if  it  is  not  war,  they  do  not  come 
into  that  category,  but  under  the  category  of  piracy  or  of  crimes  by 
municipal  law. 

"  Now,  all  citizens  of  a  foreign  state,  and  all  its  executive  officers  and 
judicial  magistrates,  look  to  the  ])olitical  department  of  their  Govern- 
ment to  prescribe  the  rule  of  their  conduct  in  all  their  i)ossible  relations 
with  the  parties  to  the  contest.  This  rule  is  prescribed  in  the  best  and 
most  intelligible  manner  for  all  possible  contingencies  by  the  simple 
declaration  that  the  contest  is  or  is  not  to  be  treated  as  war.  If  the 
state  of  things  requires  the  decision,  it  must  be  made  by  the  political 
department  of  the  Government.  It  is  not  fit  that  cases  should  be  left 
to  be  decided  as  they  may  arise,  by  i)rivate  citizens,  or  naval  or  judicial 
officers,  at  home  or  abroad,  by  sea  or  land.     It  is,  therefore,  the  custom 

518 


CHAP.  III.]  BELLIGERENCY.  [§  69. 

of  nations  for  the  ])olitical  d('i)artnieiit  of  a  foieij^ii  sfate  to  make  the 
decision.  It  owes  it  to  its  own  citizens,  to  the  conteudiujj;  parties,  and 
to  the  peace  of  the  world,  to  make  that  decision  seasonably.  If  it  issues 
a  formal  declaration  of  belligerent  rights  prematurely,  or  in  a  contest 
with  which  it  has  no  complexity,  it  is  a  gratuitous  and  unfriendly  act. 
If  the  i)arent  Government  com])lains  of  it,  the  comjjlaint  must  be  made 
upon  one  of  these  grounds.  To  decide  whether  the  recognition  was 
uncalled  for  and  premature  requires  something  more  than  a  considera- 
tion of  proximate  facts  and  the  overt  and  formal  acts  of  the  contending 
l)arties.  The  foreign  state  is  bound  and  entitled  to  consider  the  pre- 
ceding history  of  the  parties;  the  magnitude  and  completeness  of  the 
l)olitical  and  military  organizations  and  preparations  on  each  side;  the 
l)robable  extent  of  the  conflict  by  sea  and  land ;  the  probable  extent 
and  rai)idity  of  its  development ;  and,  above  all,  the  i)robability  tliat  its 
own  merchant  vessels,  naval  officers,  and  consuls  may  be  i)recipitated 
into  sudden  and  difficult  complications  abroad.  The  best  that  can  be 
said  is,  that  the  foreign  state  may  protect  itself  by  a  seasonable  decis- 
ion— either  upon  a  test  case  that  arises  or  by  a  general  prospective 
decision — while,  on  the  other  hand,  if  it  makes  the  recognition  prema- 
turely, it  is  liable  to  the  suspicion  of  an  unfriendly  purpose  to  the  par- 
ent state.  The  recognition  of  belligerent  rights  is  not  solely  to  the 
advantage  of  the  insurgents.  They  gain  the  great  advantage  of  a  rec- 
ognized status,  and  the  opportunity  to  employ  commissioned  cruisers 
at  sea,  and  to  exert  all  the  powers  known  to  maritime  warfare,  with  the 
sanction  of  foreign  nations.  They  can  obtain  abroad  loans,  military 
and  naval  materials,  and  enlist  men,  as  against  everything  but  neu- 
trality laws;  their  flag  and  commissions  are  acknowledged,  their  reve- 
nue laws  are  respected,  and  they  acquire  a  quasi-imlitical  recognition. 
On  the  other  hand,  the  parent  Government  is  relieved  tVom  responsi- 
bility for  acts  done  in  the  insurgent  territory;  its  blockade  of  its  own 
])orts  is  respected ;  and.  it  acquires  a  right  to  exert,  against  neutral  com- 
merce, all  the  powers  of  a  party  to  a  maritime  war." 

Mr.  Dana,  note  to  Daua's  Wheaton,  ^  23. 

This  passage  is  cited  by  Sir  A.  Cockbuin  in  bis  opinion  in  the  Geneva  Ti-i- 
bnnal,  with  the  foUowing  prefix:  "The  principles  by  which  a  nentral  state 
shonbl  be  goveined  as  to  the  circnnistances  nnder  which,  or  the  period  at 
which,  to  acknowledge  the  belligerent  status  of  insnrg(;nts,  havc^  l)een  no- 
where more  fully  and  ably,  or  more  fairly,  stated  than  by  Mr.  Dana,  in  his 
edition  of  Wheaton,  in  a  note  to  section  23." 

"  It  has  been  the  constant  practice  of  European  nations,  and  of  the 
United  States,  to  'look  upon  iDelligerency  as  a  fact  rather  than  a  prin- 
ciple,' holding  with  Mr.  Canning,  'that  a  certain  degree  of  force  antl 
consistency  acquired  by  a  mass  of  population  engaged  in  war  entitled 
that  ])opulation  to  be  treated  as  belligerent.'  Inst;inces,  too,  are  numer- 
ous, from  the  time  when  the  North  American  colonies  threw  otT  the 
yoke  of  England,  down  to  the  period  when,  at  an  early  stage  of  hostili- 
ties between  the  United  States  and  the  Confederate  States,  it  was 
resolved  by  the  Governments  of  England  and  France  to  treat  the  South- 
ern Confederacy  in  accordance  with  acknowledged  principles  as  a  bellig- 
erent." 

Alidy's  Kent  (1878),  94,  citing  Hansard,  vol.  clxii,  p.  15GG.  Annual  Reg.,  1861, 
p.  114. 

519 


^09.]  INTERVENTION.  [cHAP.  lit 

"  It  is  easy  to  see  what  they  (the  United  States)  gained  (by  the 
aclinowledgment  of  Confederate  belligerency).  They  gained  the  liberty 
to  exercise  against  British  ships  on  the  high  seas  tlie  rights  of  visit  and 
search,  of  cai)turiug  contraband,  and  of  blockade,  rights  which  spring 
solely  from  the  relation  of  belligerent  and  neutral,  and  which  the  neu- 
tral acknowledges  by  recognizing  the  existence  of  that  relation.  The 
advantages  reaped  in  maritime  war  from  the  exercise  of  such  rights 
fall  where  there  is  a  disparity  of  force,  into  the  hands  of  the  stronger 
belligerent;  where  the  <lisparity  is  great  he  has  a  monopoly  of  them, 
for  he  is  able  to  shut  up  his  enemy  in  port  and  drive  him  from  the  sea." 

Bernard's  Neutrality  of  Gr.  Brit.,  167. 

"  The  steadfast  determination  of  the  Government  neither  to  say  nor  do 
anything  which  could  reasonably  be  coustrued  into  an  interference,  was 
tested  in  November,  1862,  when  it  was  proposed  by  the  Emperor  of  the 
French  that  the  Courts  of  France,  Russia,  and  Great  Britain  should 
tender  their  good  ofBces  to  both  belligerents,  in  the  hope  of  preparing 
the  way  for  an  accommodation.  M.  Drouyu  de  I'Huys,  in  addressing 
himself  to  the  British  Government,  dwelt  on  the  '  innumerable  calami- 
ties and  immense  bloodshed'  which  attended  the  war,  and  on  the  evils 
which  it  inflicted  upon  Europe.  The  two  contending  parties,  he  said,  had 
up  to  that  time  fought  with  balanced  success,  and  there  appeared  to  be 
no  probability  that  the  strife  would  soon  terminate.  He  projjosed,  there- 
fore, that  the  three  courts  should  join  in  recommending  an  armistice  for 
six  months,  during  which  means  might  be  discovered  for  effecting  a  last- 
ing pacification.  The  British  Government  declined  to  take  partin  such  a 
recommendation,  being  satisfied  that  there  was  no  reasonable  prospect  of 
its  being  entertained  by  that  of  the  United  States.  '  Depend  upon  it,  my 
lords,'  said  Earl  Russell,  addressing  the  House  of  Peers  in  1863,  '  that, 
if  this  war  is  to  cease,  it  is  far  better  that  it  should  cease  by  a  convic- 
tion both  on  the  part  of  the  IS'orth  and  on  that  of  the  South  that  they 
can  never  live  together  again  happily  as  one  community  and  as  one 
Republic,  and  that  the  termination  of  hostilities  can  never  be  brought 
about  by  the  advice,  the  mediation,  or  the  interference  of  any  European 
power.'" 

Ibid.,  467. 

Where  the  people  of  a  Republic  are  divided  into  two  hostile  parties, 
who  take  up  arms  and  oppose  one  another  by  military  force,  civil  war 
exists,  without  regard  to  the  cause  of  the  dispute.  A  revolutionary 
party,  like  a  foreign  belligerent  power,  is  supreme  over  the  country  it 
conquers  as  far  and  as  long  as  its  arms  can  carry  and  maintain  it. 
Foreign  vessels  obtaining  and  using  licenses  and  clearances  from  such  a 
party,  are  not  liable  to  punishment  by  the  other  party  afterwards  for  so 
doing. 

9  Op.,  140,  Black,  1858. 

As  to  recognition  of  United  States  belligerency  by  France  and  Holland  during 

the  American  Eevolntion,  see  Annual  Reg.,  1779,  249. 
As  to  Danish  recognition  of  the  belligerency  of  the  United  States  during  the 

American  Revolution,  see  3  Sparks's  Dip.  Corr.,  121 ;    8  Sparks's  Life  of 

Franklin,  407. 
As  to  distiuctiou   between  "insurgency"  and  "  belligerency,"  see  33  Alb.  Law 

J.,  125,  Feb.  13,  1886. 
As  to  recognition  of  insurgency  as  a  preliminary  to  belligerency,  see  infra,  ^  381. 
That  Confederate  cruisers  were  not  pirates,  see  infra,  ^  381. 

6;i0 


CHAt>.  III.]  RECOGNrriON    OF   SOVERfttGNtY.  [$  70. 

VI.  RECOGNITION  OF  SOVEREIGNTY. 

§70. 

"  I  am  perfectly  sensible  that  your  situation  must,  ere  this  reaches 
you,  have  beeu  delicate  and  difficult;  and  thoujjh  the  occa.siou  is 
probably  over,  and  your  part  taken  of  necessity,  so  that  instructions 
now  would  be  too  late,  yet  1  think  it  just  to  express  our  sentiments  on 
the  subject  as  a  sanction  of  what  you  have  probably  done.  Whenever 
the  scene  became  ])ersonally  dangerous  to  you,  it  was  proper  you  should 
leave  it,  as  well  from  personal,  as  public  motives.  But  what  degree  of 
danger  should  be  attended,  to  what  distance  or  place  you  should  retire, 
are  circumstances  which  must  rest  with  your  own  discretion,  it  being 
impossible  to  prescribe  them  from  hence.  With  what  kind  of  Govern- 
ment you  may  do  business  is  another  question.  It  accords  with  our 
principles  to  acknowledge  any  Government  to  be  rightful  which  is  formed 
by  the  will  of  the  nation,  substantially  declared.  The  late  Government 
was  of  this  kind,  and  was  accordingly  acknowledged  by  all  the  branches 
of  ours;  so  any  alteration  of  it  which  shall  be  made  by  the  will  of 
the  nation,  substantially  declared,  will  doubtless  be  acknowledged  in. 
like  manner.  With  such  a  Government  every  kind  of  business  may: 
be  done.  But  there  are  some  matters  which  T  conceive  might  be  traits*;- 
acted  with  a  Government  de  facto,  which,  for  instance,  as  the  refornimg" 
the  unfriendly  restrictions  on  our  commerce  and  navigation,  such  as  you 
will  readily  distinguish  as  they  occur.  With  resi)ect  to  this  particular 
reformation  of  their  regulations,  we  cannot  be  too  pressing  for  its  attain- 
ment, as  every  day's  continuance  gives  it  additional  firmness,  and  en- 
dangers its  taking  root  in  their  habits  and  constitution  ;  and,.indeed,  I 
think  they  should  be  told,  as  soon  as  they  are  in  a  condition  to  act,  that 
if  they  do  not  revoke  the  late  innovations,  we  must  lay  adtiition  and. 
equivalent  burdens  on  French  ships  by  name." 

Mr.  Jefifersoii,  Sec.  of  State,  to  Mr.  Morris,  Nov.  7,  1792.     MSS.  Iiust.,  Miuist^cs;. 

"  The  royal  family  left  Paris  on  the  19th  instant,  at  midnight,  ansd! 
took  the  road  for  Lille.  Yesterday  morning  I  received  a  note  from  Count 
Jarcourt  stating  the  departure  of  the  King,  and  informing  me  that  he 
would  see  with  pleasure  the  diplomatic  corps,  without,  however,  con- 
straining those  who  prefer  to  return  to  their  resjjective  courts.  »  *  * 
The  Em])eror  has  not  yet  api)ointed  his  minister  of  foieigii  relations.  1 
think  it  is  jnobable  Caulaincourt  wiM  bo  appointed.  1  shall  endeavor 
to  see  the  minister  shortly  after  his  appointment  lor  business  purposes 
which  are  specified." 

Mr.  Crawford,  minister  at  Paris,  to  Mr.  Mouroo,  Sec.  of  State,  (miofticial),  Mar. 
21,  181.5.     Monroe  Pap.,  Dept.  of  State. 

"There  is  a  stage  in  such  (revolutionary)  contests  when  the  parfty/ 
struggling  for  independence  has,  as  I  conceive,  a  right  to  demand  its ; 
acknowledgment  by  neutral  parties,  and  when  the  acknowledgment  mav/ 

521 


§  70.]  INTERVENTION.  [cHAP.  III. 

be  griinted  williout  departure  from  tlie  obligations  of  neutrality.  It 
is  the  stage  wheu  the  independence  is  established  as  matter  of  fact, 
so  as  to  leave  the  chance  of  the  opposite  party  to  recover  their  domin- 
ion utterly  desperate.  The  neutral  nation  must,  of  course,  judge  for 
itself  when  this  period  has  arrived;  and  as  the  belligerent  nation  has 
the  same  right  to  judge  for  itself,  it  is  very  likely  to  judge  differently 
Iroiu  the  neutral,  and  to  make  it  a  cause  or  pretext  for  war,  as  Great 
Ijritain  did  expressly  against  France  in  our  Revolution,  and  substantially 
iigainst  Holland.  If  war  thus  results,  in  point  of  fact,  from  the  meas- 
ure of  recognizing  a  contested  independence,  the  moral  right  or  wrong 
of  the  war  depends  upon  the  justice  and  sincerity  and  prudence  with 
which,  the  recognizing  natiou  took  the  step.  I  am  satisfied  that  the 
cause  of  the  South  Americans,  so  far  as  it  consists  in  the  assertion  of 
independence  against  Spain,  is  just.  But  the  justice  of  a  cause,  how- 
ever it  may  enlist  individual  feelings  in  its  favor,  is  not  sufficient  to 
justify  third  parties  in  siding  with  it.  The  fact  and  the  right  com 
bined  can  alone  authorize  a  neutral  to  acknowledge  a  new  and  disputed 
sovereignty." 

Mr.  Adams,  Sec.   of  State,   to   Mr.   Monroe,  President,  Aug.  24,  1816.     MSS. 

Monroe  Pap.,  Dept.  of  State. 
President  Monroe's  message  of  Mar.  25,  1818,  giving  the  papers  in  the  Depart- 
ment relative  to  South  American  independence  down  to  that  date,  is  con- 
tained in  House  Doc.  No.  293,  Ist  sess.,  15th  Cong.,  4  Am.  St.  Pap.  (For. 
Rel.),  173  ff.  President  Monroe's  message  of  Jan.  29,  1819,  on  the  same 
subject,  with  the  accompanying  papers,  is  contained  in  House  Doc.  No. 
309,  2d  sess.,  15th  Cong. ;  4  Am.  St.  Pap.  (For.  Rel.),  412.  ^ 

As  to  the  effort  of  the  allied  European  powers  to  prevent  the  recognition  of  the 
independence  of  the  South  American  colonies  by  the  United  States,  see 
Mr.  Gallatin,  minister  at  Paris,  to  Mr.  Adams,  Sec.  of  State,  Aug.  10,1818. 
2  Gallatin's  Writings,  73. 

"I  had  upon  every  occasion  stated  that  the  general  opinion  of  the 
United  States  must  irresistibly  lead  to  such  a  recognition;  that  it  is  a 
question,  not  of  interest,  but  of  feeling,  and  that  this  arose  much  less 
Irom  the  wish  of  seeing  new  Rei)ublics  established  than  that  of  the 
emancipation  of  Spanish  America  from  Euro]ie.  *  *  *  \Ve  had  not, 
either  directly  or  indirectly,  excited  the  insurrection.  It  had  been  the 
siwntaneous  act  of  the  inhabitants,  and  the  natural  efiect  of  causes 
which  neither  the  United  States  nor  Europe  couki  have  controlled. 
We  litid  lent  no  assistance  to  either  party;  we  had  preserved  a  strict 
neutrality.  But  no  European  Government  could  be  surprised  or  dis- 
pleased that  in  such  a  cause  our  wishes  should  be  in  favor  of  the  suc- 
cess of  the  colonies,  or  that  we  should  treat  as  independent  j^owers 
those  amongst  them  which  had  in  fact  established  their  independence." 

Mr.  Gallatin,  minister  at  Paris,  to  Mr.  J.  Q.  Adams,  Sec.  of  State,  Nov.  5, 1818. 
2  Gallatin's  Writings,  75. 

'•  But  while  this  state  of  things  continues,  an  entire  equality  of  treat- 
ment of  the  parties  is  not  possible.     There  are  circumstances  arising 
from  the  nature  of  the  contest  itself  which  produce  unavoidable  in- 
equalities.    Spain,  for  instance,  is  an  acknowledged  sovereign  jiower, 
522 


CHAP.  IT.]  TtEC0GNITIO?\     OF    SOVEREIGNTY  [§  70. 

luul,  as  such,  has  ministers  and  other  accredited  and  privileged  agents 
to  maintain  her  interest  and  snpport  her  rights  ooiiforiiiahly  to  the 
usages  of  nations.  The  South  Americans,  not  being  acknowledged  as 
sovereign  and  independent  states,  cannot  have  the  benefit  of  such  offi- 
cers. We  consider  it,  however,  as  among  the  obligations  of  neutrality 
to  obviate  this  inequality,  as  far  as  may  be  practicable,  without  taking 
a  side,  as  if  the  question  of  the  war  was  decided.  We  listen,  therefore, 
to  the  representations  of  their  deputies  or  agents,  and  do  them  justice 
as  much  as  if  they  were  formally  accredited.  By  acknowledging  the 
existence  of  a  civil  war,  the  right  of  Spain,  as  understood  by  herself,  is 
no  doubt,  affected.  She  is  no  longer  recognized  as  the  sovereign  of  the 
provinces  in  revolution  against  her.  Thus  far  neutrality  itself  operates 
against  her,  and  not  against  the  other  party.  This  also  is  an  inequal- 
ity arising  from  the  nature  of  the  struggle,  unavoidable,  and  therefore 
not  incompatible  with  neutralitj'." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Rush,  Jan.  1,  1819.     MSS.  Inst.,  Ministers. 

The  correspondence  of  the  United  States  with  Spain,  Buenos  Ayres,  Cliili, 
Colombia,  and  Mexico,  relative  to  the  independence  of  the  Spanish-Ameri- 
can states,  is  given  in  the  Brit,  and  For.  St.  Pa]),  for  1821-22,  vol.  9,  p.  369. 

Papers  relative  to  the  political  condition  of  Spanish  South  America  are  given 
in  President  Monroe's  messages  of  Mar.  8  and  Apr.  G,  1822,  House  Doc.  No. 
327,  17th  Cong.,  1st  sess.     4  Am.  St.  Pap.  (For.  Rol.),  318. 

"  In  every  question  relating  to  the  independence  of  a  nation  tw^o 
principles  are  involved,  one  of  7-ight  and  the  other  of  fact ;  the  former 
exclusively  depending  upon  the  determination  of  the  nation  itself,  and 
the  latter  resulting  from  the  successful  execution  of  that  determination. 
This  right  has  been  recently  exercised  as  well  by  the  Spanish  nation  in 
Euroj)e  as  by  several  of  those  countries  in  the  American  hemisphere 
which  had  for  two  or  three  centuries  been  connected,  as  colonies,  with 
Spain.  In  the  conflicts  which  have  attended  these  revolutions  the 
United  States  have  carefully  abstained  from  taking  any  part,  respect- 
ing the  right  of  the  nations  concerned  in  them  to  maintain  or  reorganize 
their  own  political  constitutions,  and  observing,  wherever  it  was  acoi» 
test  by  arms,  a  most  impartial  neutrality ;  but  the  civil  war  in  which 
Spain  was  for  some  years  involved  with  the  inhabitants  of  her  colonies 
in  America  has,  in  substance,  ceased  to  exist.  Treaties  equivalent  to 
an  acknowledgment  of  independence  have  been  concluded  by  the  com- 
manders and  viceroys  of  Spain  herself  with  the  Republic  of  Colombia, 
with  Mexico,  and  with  Peru,  while  in  the  provinces  of  La  Plata  and  in 
Chili  no  Spanish  force  has  for  several  years  existed  to  dispute  the  in- 
dependence which  the  inhabitants  of  those  countries  had  declared. 

"  Under  these  circumstances,  the  Government  of  the  United  States, 
far  from  consulting  the  dictates  of  a  policy  questionable  in  its  morality, 
yielded  to  an  obligation  of  duty  of  the  highest  order  by  recognizing  as 
independent  states  nations  which,  after  deliberately  asserting  their 

523 


§  70.]  INTERVENTION.  [cHAP.  III. 

right  to  that  character,  have  maintained  and  established  it  against  all 
the  resistance  which  had  been  or  could  be  brought  to  oppose  it.  This 
recognition  is  neither  intended  to  invalidate  any  right  of  Spain,  nor  to 
afiect  the  employment  of  any  means  which  she  may  yet  be  disposed  or 
enabled  to  use  with  the  view  of  reuniting  those  provinces  to  the  rest  of 
lier  dominions.  It  is  the  mere  acknowledgment  of  existing  facts  with 
the  view  to  the  regular  establishment  with  the  nations  newly  formed  of 
those  relations,  political  and  commercial,  which  it  is  the  moral  obliga- 
tion of  civilized  and  Christian  nations  to  entertain  reciprocally  with 
•one  another." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Andnaga,  Apr.  6, 1822.  MSS.  For.  Leg.  Notes. 
That  the  recognition  by  the  United  States,  in  March,  1822,  of  the  independence 
of  the  Spanish-American  colonies  was  received  with  satisfaction  in  England, 
and  was  "not  generally  unfavorably  received,"  see  Mr.  Gallatin,  minister  at 
Paris,  to  Mr.  J.  Q.  Adams,  Sec.  of  State,  Apr.  26,  1822.  2  Gallatin's  Writ- 
ings, 240. 

'-'"Mr.Anduaga,  I  observe,  casts  in  our  teeth  the  postponement  of  the 
tvicQgnition  of  Spanish  America  till  the  cession  of  Florida  was  secured, 
audtaldng  that  step  immediately  after.  This  insinuation  will  br  so  readily 
embiraced  by  suspicious  minds,  and  particularly  by  tlie  wily  cabinets  of 
Europe,  that  I  cannot  but  think  that  it  will  be  well  to  take  away  that 
])retext  against  us  by  an  expose  brought  before  the  public  in  some  due 
lorm  in  which  our  conduct  would  be  seen  in  its  true  light.  An  historical 
view  of  the  (early  sentiments  in  liivor  of  our  neighbors  expressed  here, 
tlie  successive  vsteps  openly  taken  manifesting  our  sympathy  with  their 
cause  and  our  anticipation  of  its  success,  more  especially  our  declaration 
•of  neutrality  towards  the  contending  parties  as  engaged  in  a  civil,  not 
an  insurrectionary,  war,  would  show  to  the  world  that  we  never  con- 
'cealed  the  principles  that  governed  us,  nor  the  policyVhich  terminated 
iin  the  decisive  step  last  taken." 

Mr.  Madison  to  President  Monroe,  May  6,  1822.  (Unofficial)  Monroe  Pap.  MSS. 
Dept.  of  State.     3  Madison's  Writings,  267. 

"When  a  sovereign  has  a  reasonable  hope  of  maintaining  his  authority 
♦crrea*  insurgents,  the  acknowledgment  of  the  independence  of  snch  in- 
surgents would  be  an  international  wrong.  It  is  otherwise  when  such 
sovereign  is  manifestly  disabled  from  maintaining  the  contest. 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Anderson,  May  27, 1823,  in  which  letter  is  given 
a  history  of  the  action  of  the  United  States  to  the  revolted  colonies  in  South 
America,  ending  in  their  recognition.     MSS.  Inst.,  Ministers. 

Mr.  Salazar,  the  Minister  from  Colombia,  stated  lately,  by  order  of 
Iliis  Government,  that  a  French  agent  was  expected  at  Bogota,  having 
•.already  arrived  at  the  port,  with  power  to  treat  with  his  Government 
vrespecting  its  independence.  He  observed  that  his  Government  had 
U»e.en  advised,  from  an  authentic  source,  that  the  Government  of  France 
•w©uld  acknowledge  its  independence  on  one  condition,  the  establishment 
of  monarchy,  and  leave  the  person  to  be  placed  in  that  station,  to  the 
pt;»^ple  of  Colombia ;  that  Bolivar  would  not  be  objected  to  if  preferred 
.524 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

by  them.  He  asked,  should  the  proposition  be  rejected  and  France  be- 
come hostile  in  consequence,  what  part  the  United  States  would  take 
in  that  event.  What  aid  might  they  expect  from  us?  The  subject  will 
of  course  be  weighed  thoroughly  in  giving  the  answer.  The  Execu- 
tive has  no  right  to  compromit  the  nation  in  any  question  of  war,  nor 
ought  we  to  i^resume  that  the  people  of  Colombia  will  hesitate  as  to 
the  answer  to  be  given  to  any  proposition  which  touches  so  vitally  their 
liberties. 

President  Monroe  to  Mr.  Madison,  Aug.  2,  1824.     Madison  MSS.  Uept.  of  State. 

''In  considering  that  war  (between  Spain  and  her  colonies),  as  in 
considering  all  others,  we  should  look  back  upon  the  past,  deliberately 
survey  its  present  condition,  and  endeavor,  if  possible,  to  catch  a  view 
of  what  is  to  come.  With  respect  to  the  first  branch  of  the  subject,  it 
is,  perhaps,  of  the  least  practical  importance.  No  statesman  can  have 
contemplated  the  colonial  relations  of  Europe  and  continental  America 
without  foreseeing  that  the  time  must  come  when  they  would  cease. 
That  time  might  have  been  retarded  or  accelerated,  but  come  it  must 
in  the  great  march  of  human  events.  An  attempt  of  the  British  Par- 
liament to  tax  without  their  consent  the  former  British  colonies,  now 
these  United  States,  produced  the  war  of  our  Eevolution,  and  led  to 
the  establishment  of  that  independence  and  freedom  which  we  now  so 
justly  prize.  Moderation  and  forbearance  on  the  part  of  Great  Britain 
might  have  postponed,  but  could  not  have  prevented,  our  ultimate  sep- 
aration. The  attempt  of  Bonaparte  to  subvert  the  ancient  dynasty  of 
Si)ain,  and  to  place  on  its  throne  a  member  of  his  own  family,  no  doubt 
hastened  the  independence  of  the  Spanish  colonies.  If  he  had  not  been 
urged  by  his  ambition  to  the  conquest  of  the  peninsula,  those  colonies, 
for  a  long  time  to  come,  might  have  continued  quietly  to  submit  to  the 
parental  sway.  But  they  must  have  inevitably  thrown  it  off,  sooner  or 
later.  We  may  imagine  that  a  vast  continent,  uninhabited  or  thinly 
peopled  by  a  savage  and  untutored  race,  may  be  governed  by  a  remote 
country,  blessed  with  the  lights  and  possessed  of  the  power  of  civiliza- 
tion, but  it  is  absurd  to  suppose  that  this  same  continent,  in  extent 
twenty  times  greater  than  that  of  the  parent  country,  and  doubling  it 
in  a  population  equ;,illy  civilized,  should  not  be  able,  when  it  chooses  to 
make  the  efibrt,  to  cast  oft"  the  distant  authority.  When  the  epoch  of 
separation  between  a  parent  state  and  its  colonj'^,  from  whatever  cause, 
arrives,  the  struggle  for  self-government  on  the  one  hand,  and  for  the 
preservation  of  power  on  the  other,  produces  mutual  exasperation  and 
leads  to  a  most  embittered  and  ferocious  war.  It  is  then  that  it  becomes 
the  duty  of  third  i^owers  to  interpose  their  humane  offices,  and  calm  the 
passions  and  enlighten  the  counsels  of  the  parties.  And  the  necessity 
of  their  eftbrts  is  greatest  with  the  parent  country,  whose  pride  and 
whose  wealth  and  power,  swelled  by  the  colonial  contributions,  create 

525 


§  70.]  INTERVENTION.  *  [CHAP.  III. 

the,  most  repugnance  to  an  acquiescence  in  a  severance  which  has  been 
ordained  by  Providence." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Middletoii,  May  10,  1825.  MSS.  lust.,  Miuisters. 
Brit,  and  For.  St.  Pap.  (13-25-'26),  vol.  1.-?,  p.  403. 

The  correspoudence  in  1 826  with  Spain,  in  respect  to  the  independence  of  Span- 
ish America  will  be  found  in  the  Brit,  and  For.  St.  Pap.  for  1828-'29,  vol.  10, 
856.  See  also  2  Phill.  Int.  Law  (3d  ed.),  545 ;  5  J.  Q.  Adams's  Mem.,  488, 
489,  491. 

The  following  is  from  Mr.  J.  C.  Bancroft  Davis's  notes  to  the  Treaties 
of  the  United  States : 

"At  the  opening  of  the  first  session  of  the  Twelfth  Congress  the 
House  referred  to  a  select  committee  the  part  of  the  President's  mes- 
sage relating  to  the  Spanish-American  colonies.  (1  Annals,  1st  sess. 
12th  Cong.,  335.)  The  committee  on  tlie  10th  of  December  reported  a 
joint  resolution  that  'the  Senate  and  House  "of  Eepresentatives  will 
unite  with  the  Executive  in  establishing  with  them  as  foreign  and  in- 
dependent states  such  amicable  relations  and  commercial  intercourse 
as  may  require  their  legislative  authority.'  [Ibid.^  428,  and  3F.  R.,  F., 
538.)  A  letter  from  Monroe,  then  Secretary  of  State,  transmitting  a  copy 
of  the  declaration  of  independence  of  Venezuela,  and  saying  that  he  had 
no  information  that  any  other  of  the  Sj)anish  provinces  had  entered 
into  similar  declarations,  accompanied  the  resolution  as  reported  by  the 
committee.     (Ibid.,  539.)     The  resolution  was  allowed  to  drop. 

"  On  the  5th  of  December,  1817,  the  House  requested  the  President 
to  lay  before  it  '  such  information  as  he  may  possess  and  think  proper 
to  communicate  relative  to  the  independence  and  political  condition  of 
the  provinces  of  Spanish-America.  (1  Annals,  1st  sess.  15th  Cong., 
406-8.)  This  appears  to  have  been  called  out  by  the  message  of  Presi- 
dent Monroe  on  the  2d  of  December,  in  which  he  stated  that  persons 
claiming  to  act  under  the  authority  of  some  of  the  colonies  had  taken 
possession  of  Amelia  Island,  off  the  coast  of  Florida,  and  had  made  of 
the  island  a  channel  for  the  illicit  introduction  ot  slaves  from  Africa  into 
the  United  States,  an  asylum  lor  liigitive  slaves  from  the  neighboring 
states,  and  a  port  for  smuggling  of  every  kind.     (Ibid.,  14.) 

"Before  the  President  replied  to  the  resolution,  the  forces  of  the 
United  States  had  occupied  Amelia  Island.  Upon  this  '  Vincente  Pazos, 
representing  himself  as  the  dejiuted  agent  of  the  authorities  acting  in 
the  name  of  the  Republics  of  Venezuela,  New  Granada,  and  Mexico,' 
presented  to  the  House  of  Representatives,  through  the  Speaker,  on  the 
11th  of  March,  1818,  a  memorial  complaining  of  that  occupation.  (An- 
nals, 1st  sess.  15th  Cong.,  1251.)  An  animated  discussion  immediately 
ensued.  Forsyth  said :  'The  question  then  for  the  House  to  consider 
was  whether,  when  the  Constitution  has  i)laced  the  conduct  of  our  for- 
eign relations  with  the  Executive,  a  foreign  agent  shall  be  permitted  to 
appeal  from  the  Executive  to  this  House.'  (Ibid.,  1202.)  The  House  by 
a  vote  of  127  to  28  refused  to  receive  the  memorial.  (Ibid.,  1208.)  (As 
to  Amelia  Island,  see  supra  §  50a.) 

"  The  rejiort  of  the  Secretary  of  State,  in  reply  to  the  resolution  of 
the  5th  of  December,  was  transmitted  to  the  House  on  the  25th  of 
March,  1818.  In  the  interval  that  had  elapsed  a  wide  discussion  on 
Spanish-American  affairs  had  taken  place  in  the  debates  upon  neutrality 
laws  and  other  germane  subjects.  (4  F.  R.,  F.,  173.)  From  this  report 
it  appeared  that  the  United  Provinces  of  La  Plata  had  applied  to  be 
recognized  as  independent  states. 

526 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

"  Iiixtraordinary  ])aiiis  were  taken  to  secure  accurate  iiiCormatioii  r<i- 
Nl)ectiup^  tb(i  widely-extended  conflict  ^oing  on  between  Spain  and  licr 
colonies.  A  commission,  consisting- of  Caesar  A.  liodney,  -lolin  (Iraliaiii, 
and  Tbeodoric  Bland,  was  sent  to  Jiuenos  Ayres  and  JMontcvidco,  wiili 
instructions  to  make  full  reports.  Tliey  did  so,  and  tlie  poliiical,  social, 
commercial,  and  industrial  information  wlii(;li  was  furnished  respecting 
these  countries  renuiinsin  the  i)ul)lic  documents  of  the  United  Slates  to 
attest  the  writer's  fidelity,  intelligence,  and  power  of  giving  literary 
attraction  to  official  reports.  (4  F.  K.,  F.,  L*17-323.)  A  special  rejiort 
on  the  subject  was  also  obtained  from  Poinsett.  {Ibid.,  323.)  The 
whole  was  transmitted  to  Congress  by  the  President.  The  general  re- 
sult of  these  reports  may  be  summed  up  thus :  To  the  east  of  the  Andes 
and  south  of  Brazil  the  Government  of  the  United  Provinces  of  the 
Kio  Plata  (or  of  South  America)  clainu^d  a  federal  jurisdiction  over  the 
whole  territory,  which  was  denied  and  successfully  resisted  by  Para- 
guay and  by  the  Banda  Oriental,  and  a  state  of  war  existed  between 
the  United  Provinces  and  the  latter  state.  To  the  west  of  the  Andes, 
Chili  was  in  the  possession  of  a  dictator,  with  no  representative  gov- 
ernment.    (As  to  this  mission,  see  stipra  §  47.) 

"In  the  first  session  of  the  Fifteenth  Congress  two  unsuccessful  efforts 
were  made  in  the  House  to  secure  an  appropriation  for  a  minister  to  the 
United  Provinces.  The  last  vote,  taken  on  the  30th  of  March,  1818,  was 
45  yeas  to  115  nays.     (2  Annals,  1st  sess.  15th  Cong.,  1055.) 

"In  the  next  session  of  Congress  the  House  inquired  of  the  President 
'whether  any  application  had  been  made  by  any  of  the  independent 
governments  in  South  America  to  have  a  minister  or  consul-general 
accredited  by  the  Government  of  the  United  States.'  (1  Annals,  2d 
sess.  15th  Cong.,  544.)  The  President  replied  that  Don  Limo  de  Cle- 
mente  had  applied  to  be  received  as  the  representative  of  the  Republic 
of  Venezuela,  and  that  David  C.  De  Forest,  a  citizen  of  the  United 
States,  had  applied  to  be  accredited  as  consul-general  of  the  United 
J^rovinces  of  South  America,  and  he  inclosed  the  correspondence.  (4 
F.  R.,  F.,  412,  418.  See  also  2  Annals,  2d  sess.  15th  Cong.,  Oil.  For  the 
diplomatic  correspondence  with  Spain  respecting  this  and  other  ques- 
tions through  this  series  of  years,  see  4  F.  R.,  F.,  422-026.) 

"In  his  message  to  Congress  at  the  opening  of  the  first  session  of  the 
next  (the  Sixteenth)  Congress,  President  Monroe  said:  'In  the  civil  war 
existing  between  Spain  and  the  Spanish  provinces  in  this  hemisi)here 
the  greatest  care  has  been  taken  to  enforce  the  laws  intended  to  pre- 
serve an  impartial  neutrality.  *  *  *  The  i)rogress  of  the  war,  how- 
ever, has  operated  *  *  *  iu  favor  of  the  colonies.  Buenos  Avres 
still  maintains  unshaken  the  inde])endence  which  it  declared  in  1816, 
and  has  enjoyed  since  1810.  Like  success  has  also  lately  attended  Chili, 
and  the  provinces  north  of  the  La  Plata  bordering  on  it,  and  likewise 
Venezuela.  *  *  *  Should  it  become  manifest  to  the  world  that  the 
efforts  of  Spain  to  subdue  these  provinces  will  be  fruitless,  it  may  be 
l)resumed  that  the  Spanish  Government  itself  will  give  np  the  contest. 
In  producing  such  a  determination,  it  cannot  be  doubted  that  the  oi)in- 
ion  of  friendly  powers,  who  have  taken  no  jiart  in  this  controversy,  will 
have  their  merited  influence.'     (4  F.  R.,  F.,  628.) 

"Mr.  Clay  moved,  on  the  4th  of  April,  in  this  session,  that  it  was  expe- 
dient to  provide  by  'law  a  suitable  outfit  and  salary  for  such  minister 
or  ministers  as  the  President,  by  and  with  the  advice  and  consent  of 
the  Senate,  may  send  to  any  of  the  Governments  of  South  America 
which  have  established  and  are  maintaining  their  independence  against 

527 


§  70.]  INTERVENTION.  [CHAP.  III. 

Spain.'  (2  Annals,  1st  sess.,  ICth  Cong.,  1781.)  The  motion  was  carried 
on  the  lOtli  of  May,  after  debate,  by  a  majority  of  five  {ibid.^  2229),  bnt 
nothing  further  was  done.     {Ibid.,  note  2230.) 

"In  the  second  session  of  the  Sixteenth  Congress  Mr.  Clay  resumed 
his  efl'orts  to  secure  a  political  recognition  of  the  revolted  states.  He 
moved  an  approi^riation  for  a  mission  (Annals,  2d  sess.  IGth  Cong., 
1071),  but  it  was  defeated.  {Ibid.,  1077.)  He  then  moved  that  the 
House  'participates  with  the  people  of  the  United  States  in  the  deep 
interest  which  they  feel  for  the  success  of  the  Spanish  provinces  of 
South  America,  which  are  struggling  to  establish  their  liberty  and  in- 
dependence, and  that  it  will  give  its  constitutional  support  to  the  Presi- 
dent of  the  United  States  whenever  he  may  deem  it  exi)edient  to  rec- 
ogonize  the  sovereignty  and  independency  of  any  of  the  said  provinces.' 
{Ibid.,  1081.)     After  a  debate  a  motion  was  carried.     {Ibid.,  1091-1092.) 

"At  the  opening  of  the  next  session  of  Congress  the  President  said 
in  his  message:  'It  is  understood  that  the  colonies  in  South  America 
have  had  great  success  during  the  present  year  in  the  strnggle  for  their 
independence.  *  *  *  it  has  long  been  manifest  that  it  would  be 
impossible  for  Spain  to  reduce  these  colonies  by  force,  and  equally  so 
that  no  conditions  short  of  their  independence  would  be  satisfactory  to 
them.  It  may,  therefore,  be  presumed,  and  it  is  earnestly  hoped,  that 
the  Government  of  Spain,  guided  by  enlightened  and  liberal  counsels, 
will  find  it  to  comport  with  its  interests,  and  due  to  its  magnanimity, 
to  terminate  this  exhausting  controversy  on  that  basis.  To  promote 
this  result,  by  friendly  counsel  with  the  Government  of  Spain,  will  be 
the  object  of  the  Government  of  the  United  States.'     (4  F.  E.,  F.,  739.) 

"  On  the  30tb  of  January,  1822,  the  House  requcvsted  the  President  to 
lay  before  it  communications  from  the  agents  of  the  United  States  in 
the  revolted  states,  or  from  the  agents  of  those  states  in  the  United 
States  which  might  tend  to  show  the  political  condition  of  those  Gov- 
ernments, and  the  state  of  war  between  them  and  Spain.  (1  Annals, 
1st  sess.  17th  Cong.,  825-828.)  The  President  complied  with  the  request 
in  a  message  on  the  8th  of  March,  1822  {ibid.,  1238),  which  message  was 
also  comuiunicated  to  the  Senate  on  the  same  day.  {Ibid.,  284.  See 
also  4  F.  R.,  F.,  818.) 

"  In  this  message  the  President  says :  'This  contest  has  now  reached 
such  a  stage,  and  been  attended  with  such  decisive  success  on  the  part 
of  the  provinces,  that  it  merits  the  most  profound  consideration  whether 
their  right  to  the  rank  of  independent  nations,  with  all  the  Hdvantages 
incident  to  it  in  their  intercourse  with  the  United  States,  is  not  complete. 
Buenos  Ayres  assumed  that  rank  by  a  formal  declaration  in  181G,  and 
has  enjoyed  it  since  1810.  *  *  ♦  The  provinces  composing  the  Ee- 
public  of  Colombia,  after  having  separately  declared  tln^ir  independ- 
ence, were  united  by  a  fundamental  law  of  the  17th  of  December,  1819. 
*  *  *  Chili  declared  independence  in  1818,  and  has  since  enjoyed 
it  undisturbed,  and  of  late,  by  the  assistance  of  Chili  and  Buenos  Ayres, 
the  revolution  has  extended  to  Peru.  Of  the  movement  in  Mexico,  our 
information  is  less  authentic,  but  it  is,  nevertheless,  distinctly  under- 
stood that  the  new  Government  has  declared  its  independence,  and  that 
there  is  now  no  opi)osition  to  it  there,  nor  a  force  to  make  it.  *  *  * 
Thus  it  is  manifest  that  all  those  provinces  are  not  only  in  the  full  en- 
joyment of  their  iudei)endenoe,  but,  considering  the  state  of  the  war 
and  oth'^r  circumstances,  that  there  is  not  the  most  remote  prospect  of 
their  being  dei)rived  of  it.  *  *  *  Of  the  views  of  the  Spanish  Gov- 
ernment on  this  subject,  no  j)articular  information  has  been  recently 

528 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

received.  *  *  *  ij^or  has  iu\y  authentic  information  been  recently 
received  of  the  disposition  of  other  powers  respecting  it.  A  sincere  de- 
sire has  been  cherished  to  act  in  concert  with  them  in  the  proposed 
recognition.  *  *  *  In  proposing  this  measure,  it  is  not  contem- 
plated to  change  thereby,  in  the  slightest  manner,  our  friendly  rela- 
tions with  either  of  the  })arties,  but  to  observe  in  all  respects,  as  here- 
tofore, should  the  war  be  continued,  the  most  perfect  neutrality  be- 
tween them.     (4  F.  E.,  F.,  819.) 

"  On  the  4th  of  May,  1822,  Congress  passed  'An  act  making  an  appro- 
priation to  defray  the  expenses  of  missions  to  the  independent  nations 
on  the  American  continent.'  One  hundred  thousand  dollars  was  the 
sum  appropriated.     (3  St.  at  L.,  078.) 

"  In  the  message  at  the  opening  of  the  following  session  of  Congress 
(December,  1823),  President  Monroe  said:  'With  the  existing  colonies 
or  dependencies  of  any  European  power  we  have  not  interfered  and 
shall  not  interfere,  but  with  the  Governments  who  have  declared  their 
independence  and  maintained  it,  and  whose  in<lependence  we  have  on 
great  consideration  and  on  just  principles  acknowledged,  we  could  not 
view  any  interposition  for  the  purpose  of  oppressing  them,  or  controll- 
ing, in  any  other  manner,  their  destiny,  bj'^  any  European  power,  in  any 
other  light  than  as  the  manifestation  of  an  unfriendly  disposition  to- 
wards the  United  States.'    (1  Annals,  1st  sess.  18th  Cong.,  22,  23.) 

"  The  general  treaty  of  peace,  amity,  and  commerce,  concluded  on  the 
3d  day  of  October,  1824,  between  the  United  States  and  the  Republic 
of  Colombia  (which  then  consisted  of  what  was  afterwards  known  as 
New  Granada,  of  Venezuela,  and  of  Ecuador)  was  the  first  of  a  long 
series  of  treaties  with  the  new  powers.     (5  F.  R.,  F.,  696-729.) 

"  In  the  same  year  a  convention  for  the  suppression  of  the  African 
slave-trade  was  negotiated  with  the  Republic  of  Colombia,  but  was 
rejected  by  the  Senate.     {Ibid.,  729-735.)" 

"As  a  representativ^e  in  Congress  in  1818,  1820,  and  1822,  he  (Mr. 
Clay)  had,  indeed,  taken  the  lead  in  urging  on  our  Government  the 
immediate  recognition  of  the  new  South  American  states,  then  strug- 
gling bravely  to  establish  and  maintain  their  independence,  and  in 
assuring  them  of  the  warm  sympathy  of  our  own  Republic,  he  was 
earlier  than  George  Canning  himself  in  'calling  them  into  being.'  Rich- 
ard Rush,  in  writing  to  him  from  Loudon,  in  1825,  where  he  was  then 
our  minister,  justly  criticises  the  arrogant  self-laudation  of  Mr.  Can- 
ning on  this  subject,  which  Earl  Grey  had  only  ridiculed  as  a  'frivolous 
and  empty  boast,'  and  says :  '  If  Earl  Grey  had  been  better  informed 
he  would  have  said  that  it  was  you  who  did  most  to  call  them  into 
being.  *  *  *  The  South  Americans  owe  to  you  more  than  to  any 
man  in  either  hemisphere  their  independence,  you  having  led  the  way 
to  our  acknowledgment  of  it.'  *  *  *  Mr.  Clay  was  then  ready  and 
resolved,  on  assuming  the  portfolio  of  Seci'etary  of  State,  to  enter  into 
treaties  with  these  new  republics  at  the  earliest  moment,  and  Mr.  Adams 
was  no  less  resolved  and  ready  for  such  a  step." 

Mr.  Winthrop'a  address  on  Mr.  Clay,  4  Winthrop's  Addresses,  &c. ,  47. 

"Whilst  the  President,  however,  is  thus  anxious  to  prevent  all  offi- 
cious intermeddling  in  the  internal  political  affairs  of  other  countries  by 
our  diplomatic  functionaries,  he  does  not  regard  it  as  inconsistent  with 
the  observance  of  that  salutary  rule  that  you  should,  on  j^roper  applica- 
S.  Mis.  162— VOL.  I 34  529 


§  70.]  INTERVENTION.  [CHAP.  III. 

tion,  and  upon  suitable  occasions,  communicate  freely  and  frankly  the 
nature  and  operation  of  our  political  institutions,  and  so  far  as  correct 
principles  of  public  policy  can  be  aided  by  such  means  it  is  his  wish 
that  they  should  be  employed.  Your  business  is  solely  with  the  actual 
government  of  the  country  where  you  are  to  reside,  and  you  should 
sedulously  endeavor,  by  a  frank  and  courteous  deportment,  to  conciliate 
its  esteem  and  secure  its  confidence.  So  far  as  we  are  concerned,  that 
which  is  the  Government  de  facto  is  equally  so  de  jure.  Should  any 
change  in  the  Government  of  Colombia  take  place,  rendering  your  cre- 
dentials inapplicable,  you  will  be  at  no  loss  for  the  proper  explanation; 
and  should  the  new  Government  refuse  to  receive  you  without  others, 
in  another  form,  you  will,  of  course,  transmit  the  earliest  notice  of  the 
circumstance  to  this  Department  that  what  is  wanting  may  be  supplied. 
In  the  mean  time  it  may  be  expected  that  informal  communications  will 
enable  you  to  pursue  with  due  effect  the  objects  claiming  your  atten- 
tion." 

Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Moore,  June  9,  1829.     MSS.  Inst.,  Am.  St. 

As  to  the  recognition,  in  1828,  by  the  Government  at  Washington,  of  the  charg6 
d'affaires  sent  by  Don  Miguel,  as  King  of  Portugal,  see  instructions  of  Mr, 
Van  Buren,  Sec.  of  State,  to  Mr.  Tudor,  Sept.  4,  1829.    MSS.  Inst.,  Am.  St. 

"  It  has  been  the  principle  and  the  invariable  practice  of  the  United 
States  to  recognize  that  as  tlie  legal  Government  of  another  nation 
which  by  its  establishment  in  the  actual  exercise  of  ijolitical  power 
might  be  supposed  to  have  received  the  express  or  implied  assent  of 
people." 

Mr.  Livingston,  Sec.  of  State,  to  Sir  Charles  Vaughan,  Apr.  30,  1833.  MSS. 
For.  Leg.  Notes. 

In  a  report  made  June  18,  1836,  by  Mr.  Clay,  from  the  Senate  Com- 
mittee on  Foreign  Relations,  in  resi3ect  to  the  recognition  of  the  inde- 
pendence of  Texas  (Senate  I)oc.  406,  24th  Cong.,  1st  sess.),  are  the  fol- 
lowing passages : 

"  The  right  of  one  independent  power  to  recognize  the  fact  of  the 
existence  of  a  new  power  about  to  assume  a  position  among  the  nations 
of  the  earth  is  incontestable.  It  is  founded  upon  another  right,  that 
which  appertains  to  every  sovereignty,  to  take  care  of  its  own  interests 
by  establishing  and  cultivating  such  commercial  or  other  relations  with 
the  new  power  as  may  be  deemed  expedient.  Its  exercise  gives  no  just 
ground  of  umbrage  or  cause  of  war.  The  policy  which  has  hitherto 
guided  the  Government  of  the  United  States  in  respect  to  new  powers, 
has  been  to  act  on  the  fact  of  their  existence,  without  regard  to  their 
origin,  whether  that  has  been  by  the  subversion  of  a  pre-existing  Gov- 
ernment, or  by  the  violent  or  voluntary  separation  of  one  from  another 
part  of  a  common  nation.  In  cases  where  an  old  and  established  nation 
has  thought  proper  to  change  the  form  of  its  Government,  the  United 
States,  conforming  to  the  rule  which  has  ever  governed  their  conduct, 
of  strictly  abstaining  from  all  interference  with  the  domestic  concerns 
of  other  states,  have  not  stopped  to  inquire  whether  the  new  Government 
has  been  rightfully  adopted  or  not.  It  has  been  sufficient  for  them  that 
it  is,  in  fact,  the  Government  of  the  country,  in  i)ractical  operation. 

530 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

There  is,  however,  a  marked  difference  ia  the  instances  of  an  old  nation 
which  has  altered  the  form  of  its  Government,  and  a  newly  organized 
power  which  has  just  sprung  into  existence.  In  the  former  case  (such, 
for  example,  as  was  that  of  France)  the  nation  had  existed  for  ages  as 
a  separate  and  independent  community.  It  is  a  matter  of  history,  and 
the  recognition  of  its  new  Governments  was  not  necessary  to  denote  the 
existence  of  the  nation ;  but,  with  respect  to  new  powers,  the  recogni- 
tion of  their  Governments  comprehends,  first,  an  acknowledgment  of 
their  ability  to  exist  as  independent  states,  and  secondly,  the  capacity 
of  their  particular  Governments  to  perform  the  duties  and  fulfill  the 
obligations  towards  foreign  powers  incident  to  their  new  condition. 
Hence,  more  caution  and  deliberation  are  necessary  in  considering  and 
determining  the  question  of  the  acknowledgment  of  a  new  power  than 
that  of  the  new  Government  of  an  old  power. 

"  The  Government  of  the  United  States  has  taken  no  part  in  the 
contest  which  has  unhappily  existed  between  Texas  and  Mexico.  It 
has  avowed  its  intention,  and  taken  measures  to  maintain  a  strict  neu- 
trality towards  the  belligerents.  If  individual  citizens  of  the  United 
States,  impelled  by  sympathy  for  those  who  were  believed  to  be  strug- 
gling for  liberty  and  independence  against  oppression  and  tyranny, 
have  engaged  in  the  contest,  it  has  been  without  the  authority  of  their 
Government.  On  the  contrary,  the  laws  which  have  been  hitherto  found 
necessary  or  expedient  to  prevent  citizens  of  the  United  States  from 
taking  part  in  foreign  wars  have  been  directed  to  be  enforced.    *    *    * 

"  The  recognition  of  Texas  as  an  independent  power  may  be  made  by 
the  United  States  in  various  ways :  First,  by  treaty ;  second,  by  the 
passage  of  a  law  regulating  commercial  intercourse  between  the  two 
powers;  third,  by  sending  a  diplomatic  agent  to  Texas  with  the  usual 
credentials;  or,  lastly,  by  the  Executive  receiving  and  accrediting  a 
diplomatic  representative  from  Texas,  which  would  be  a  recognition  as 
far  as  the  Executive  only  is  competent  to  make  it.  In  the  first  and 
third  modes  the  concurrence  of  the  Senate  in  its  executive  character 
would  be  necessary,  and  in  the  second  in  its  legislative  character. 

"  The  Senate  alone,  without  the  co-operation  of  some  other  branch  oi 
the  Government,  is  not  competent  to  recognize  the  existence  of  any 
power. 

"The  President  of  the  United  States,  by  the  Constitution,  has  the 
charge  of  their  foreign  intercourse.  Regularly  he  ought  to  take  the 
initiative  in  the  acknowledgment  of  the  independence  of  anj'  new 
power,  but  in  this  case  he  has  not  yet  done  it,  for  reasons  which  he, 
without  doubt,  deems  sufiicieut.  If  in  any  instance  the  President 
should  be  tardy,  he  may  be  quickened  in  the  exercise  of  his  power  by 
the  expression  of  the  opinion,  or  by  other  acts,  of  one  or  both  branches 
of  Congress,  as  was  done  in  relation  to  the  Republics  formed  out  of 
Spanish  America.  But  the  committee  do  not  think  that  on  this  occa- 
sion any  tardiness  is  justly  imputable  to  the  Executive.  About  three 
months  only  have  elapsed  since  the  establishment  of  an  independent 
Government  in  Texas,  and  it  is  not  unreasonable  to  wait  a  short  time  to 
see  what  its  operation  will  be,  and  especially  whether  it  will  afford 
those  guarantees  which  foreign  powers  have  a  right  to  expect  before 
they  institute  relations  with  it. 

"  Taking  this  view  of  the  whole  matter,  the  committee  conclude  by 
recommending  to  the  Senate  the  adoption  of  the  following  resolution : 

" '  Resolved,  That  the  independence  of  Texas  ouglit  to  be  acknowl- 
edged by  the  United  States  whenever  satisfactory  information  shall  be 

531 


§  70.]  INTERVENTION.  [CHAP.  III. 

received  that  it  has  in  successful  operation  a  civil  Government,  capable 
of  performing  the  duties  and  fulfilling  the  obligations  of  an  independ- 
ent power.' " 

"  No  steps  have  been  taken  by  the  Executive  towards  the  acknowl- 
edgment of  the  independence  of  Texas,  and  the  whole  subject  would 
have  been  left  without  further  remark  on  the  information  now  given  to 
Congress,  were  it  not  that  the  two  houses  at  their  last  session,  acting 
separately,  passed  resolutions  '  that  the  independence  of  Texas  ought 
to  be  acknowledged  by  the  United  States  whenever  satisfactory  infor- 
mation should  be  received  that  it  had  in  successful  operation  a  civil 
Government  capable  of  performing  the  duties  and  fulfilling  the  obliga- 
tions of  an  independent  power.'  This  mark  of  interest  in  the  question 
of  the  independence  of  Texas,  and  indication  of  the  views  of  Congress, 
make  it  proper  that  I  should  somewhat  in  detail  present  the  considera- 
tions that  have  governed  the  Executive  in  continuing  to  occupy  the 
ground  previously  taken  in  the  contest  between  Mexico  and  Texas. 

"  The  acknowledgment  of  a  new  state  as  independent,  and  entitled  to 
a  place  in  the  family  of  nations,  is  at  all  times  an  act  of  great  delicacy 
and  responsibility,  but  more  especially  so  when  such  state  has  forcibly 
separated  itself  from  another  of  which  it  had  formed  an  integral  part, 
and  which  still  claims  dominion  over  it.  A  premature  recognition 
under  these  circumstances,  if  not  looked  upon  as  justifiable  cause  of 
war,  is  always  liable  to  be  regarded  as  a  i)roof  of  an  unfriendly  spirit 
to  one  of  the  contending  parties.  All  questions  relative  to  the  govern- 
ment of  foreign  nations,  whether  of  the  Old  or  New  World,  have  been 
treated  by  the  United  States  as  questions  of  fact  only,  and  our  prede- 
cessors have  cautiously  abstained  from  deciding  upon  them  until  the 
clearest  evidence  was  in  their  jjossession  to  enable  them  not  only  to 
decide  correctly,  but  to  shield  their  decisions  from  every  unworthy  im- 
putation. In  all  the  contests  that  have  arisen  out  of  the  revolutions  of 
France,  out  of  the  disputes  relating  to  the  Crowns  of  Portugal  and 
Spain,  out  of  the  separation  of  the  American  i^ossessions  of  both  from 
the  European  Governments,  and  out  of  the  numerous  and  constantly- 
occurring  struggles  for  dominion  in  Spanish  America,  so  wisely  con- 
sistent with  our  just  principles  has  been  the  action  of  our  Government 
that  we  have,  under  the  most  critical  circumstances,  avoided  all  censure, 
and  encountered  no  other  evil  than  that  produced  by  a  transient  estrange- 
ment of  good-will  in  those  against  whom  we  have  been  by  force  of  evi- 
dence compelled  to  decide. 

"  It  has  thus  made  known  to  the  world  that  the  uniform  policy  and 
practice  of  the  United  States  is  to  avoid  all  interference  in  disputes 
which  merely  relate  to  the  internal  government  of  other  nations,  and 
eventually  to  recognize  the  authority  of  the  prevailing  party  without 
reference  to  our  particular  interests  and  views  or  to  the  merits  of  the 
original  controversy.  Public  opinion  here  is  so  firmly  established  and 
532 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

well  understood  in  favor  of  this  policy  that  no  serious  disagreement  has 
ever  risen  among  ourselves  in  relation  to  it,  although  brought  under 
view  in  a  variety  of  forms,  and  at  periods  when  the  minds  of  the  people 
were  greatly  excited  by  the  agitation  of  topics  purely  domestic  in  their 
character.  Nor  has  any  deliberate  inquiry  ever  been  instituted  in  Con- 
gress, or  in  any  of  our  legislative  bodies,  as  to  whom  belonged  the 
power  of  originally  recognizing  a  new  state.  A  power  the  exercise  of 
which  is  equivalent,  under  some  circumstances,  to  a  declaration  of  war ; 
a  power  nowhere  especially  delegated,  and  only  granted  in  the  Consti- 
tution as  it  is  necessarily  involved  in  some  of  the  great  powers  given 
to  Congress — in  that  given  to  the  President  and  Senate  to  form  treaties 
with  foreign  powers,  and  to  appoint  embassadors  and  other  i)ublic  min- 
isters, and  in  that  conferred  upon  the  President  to  receive  ministers 
from  foreign  nations. 

"  In  the  preamble  to  the  resolution  of  the  House  of  Eepresenta- 
tives,  it  is  distinctly  intimated  that  the  expediency  of  recognizing  the 
independence  of  Texas  should  be  left  to  the  decision  of  Congress.  In 
this  view,  on  the  ground  of  expediency,  I  am  disposed  to  concur; 
and  do  not,  therefore,  consider  it  necessary  to  express  any  opinion  as 
to  the  strict  constitutional  right  of  the  Executive,  either  apart  from,  or 
in  conjunction  with  the  Senate,  over  the  subject.  It  is  to  be  presumed 
that  on  no  future  occasion  will  a  dispute  arise,  as  none  has  heretofore 
occurred,  between  the  Executive  and  the  legislature  in  the  exercise  of  the 
power  of  recognition.  It  will  always  be  considered  consistent  with  the 
spirit  of  the  Constitution,  and  most  safe,  that  it  should  be  exercised, 
when  probably  leading  to  war,  with  a  previous  understanding  with  that 
body  by  whom  war  can  alone  be  declared,  and  by  whom  all  the  provis- 
ions for  sustaining  its  perils  must  be  furnished.  Its  submission  to  Con- 
gress, which  represents  in  one  of  its  branches  the  States  of  the  Union, 
and  in  the  other,  the  people  of  the  United  States,  where  there  may  be 
reasonable  ground  to  apprehend  so  grave  a  consequence,  would  certainly 
afford  the  fullest  satisfaction  to  our  own  country,  and  a  iierfect  guaran- 
tee to  all  other  nations,  of  the  justice  and  prudence  of  the  measures 
which  might  be  adopted. 

"  In  making  these  suggestions,  it  is  not  my  purpose  to  relieve  myself 
from  the  responsibilty  of  expressing  my  own  opinions  of  the  course  the 
interests  of  our  country  prescribe,  and  its  honor  permits  us  to  follow. 

"  It  is  scarcely  to  be  imagined  that  a  question  of  this  character  could 
be  presented,  in  relation  to  which  it  would  be  more  difficult  for  the 
United  States  to  avoid  exciting  the  suspicion  and  jealousy  of  other 
powers,  and  maintain  their  established  character  for  fair  and  impartial 
dealing.  But  on  this,  as  on  every  other  trying  occasion,  safety  is  to  be 
found  in  a  rigid  adherence  to  principle. 

"  In  the  contest  between  Spain  and  the  revolted  colonies  we  stood 
aloof,  and  waited  not  only  untd  the  ability  of  the  new  states  to  protect 
themselves  was  fully  established,  but  until  the  danger  of  their  being 

533 


§  70.]  INTERVENTION.  [CHAP.  III. 

again  subjugated  had  entirely  passed  away.  Then,  and  not  until  then, 
were  they  recognized.  Such  was  our  course  in  regard  to  Mexico  her- 
self. The  same  policy  was  observed  in  all  the  disputes  growing  out 
of  the  separation  into  distinct  Governments  of  those  Spanish-Amer- 
ican states,  who  began  or  carried  on  the  contest  with  the  parent  coun- 
try, united  under  one  form  of  government.  We  acknowledged  the 
separate  independence  of  i^ew  Grenada,  of  Venezuela,  and  of  Ecuador, 
only  after  their  independent  existence  was  no  longer  a  subject  of  dis- 
pute, or  was  actually  acquiesced  in  by  those  with  whom  they  had  been 
previously  united.  It  is  true  that  with  regard  to  Texas  the  civil  au- 
thority of  Mexico  has  been  expelled,  its  invading  army  defeated,  the 
chief  of  the  Eepublic  himself  captured,  and  all  present  power  to  con- 
trol the  newly-organized  Government  of  Texas  annihilated  within  its 
confines.  But,  on  the  other  hand,  there  is,  in  appearance  at  least,  an 
immense  disparity  of  physical  force  on  the  side  of  Texas.  The  Mexican 
Eepublic,  under  another  Executive,  is  rallying  its  forces  under  a  new 
leader,  and  menacing  a  fresh  invasion  to  recover  its  lost  dominion. 

"Upon  the  issue  of  this  threatened  invasion,  the  independence  of 
Texas  may  be  considered  as  suspended;  and  were  there  nothing  pecu- 
lar  in  the  relative  situation  of  the  United  States  and  Texas,  our  acknowl- 
edgment of  its  independence  at  such  a  crisis  could  scarcely  be  regarded 
as  consistent  with  that  prudent  reserve  with  which  we  have  hitherto 
held  ourselves  bound  to  treat  all  similar  questions.  But  there  are  cir- 
cumstaucos  in  the  relations  of  the  two  countries  which  require  us  to 
act  on  this  occasion  with  even  more  than  our  wonted  caution.  Texas 
was  once  claimed  as  a  part  of  our  property,  and  there  are  those  among 
our  citizens  who,  always  reluctant  to  abandon  that  claim,  cannot  but 
regard  with  solicitude  the  prospects  of  the  reunion  of  the  territory  to 
this  country.  A  large  portion  of  its  civilized  inhabitants  are  emigrants 
from  the  United  States,  speak  the  same  language  with  ourselves,  cher- 
ish the  same  principles,  i)olitical  and  religious,  and  are  bound  to  many 
of  our  citizens  by  ties  of  friendship  and  kindred  blood;  and,  more  than 
all,  it  is  known  that  the  people  of  that  country  have  instituted  the  same 
form  of  government  with  our  own,  and  have,  since  the  close  of  your 
last  session,  oi)enly  resolved,  on  the  acknowledgment  by  us  of  their 
independence,  to  seek  admission  into  the  Union  as  one  of  the  Federal 
States.  This  last  circumstance  is  a  matter  of  jieculiar  delicacy,  and 
forces  upon  us  considerations  of  the  gravest  character.  The  title  of 
Texas  to  the  territory  she  claims  is  identified  with  her  independence; 
she  asks  us  to  acknowledge  that  title  to  the  territory,  with  an  avowed 
design  to  treat  immediately  of  its  transfer  to  the  United  States.  It 
becomes  us  to  beware  of  a  too  early  movement,  as  it  might  subject  us, 
however  unjustly,  to  the  imputation  of  seeking  to  establish  the  claim 
of  our  neighbors  to  a  territory,  with  a  view  to  its  subsequent  acquisi- 
tion by  ourselves.  Prudence,  therefore,  seems  to  dictate  that  we  should 
534 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

etill  stand  aloof,  and  maintain  our  present  attitude,  if  not  until  Mexico 
itself,  or  one  of  the  great  foreign  powers,  sball  recognize  the  independ- 
ence of  the  new  Government,  at  least  until  the  lapse  of  time  or  the 
course  of  events  shall  have  proved  beyond  cavil  or  dispute  the  ability 
of  the  people  of  that  country  to  maintain  their  separate  sovereignty 
and  to  uphold  the  Government  constituted  by  them.  Neither  of  the 
contending  parties  can  justly  complain  of  this  course.  By  pursuing  it, 
we  are  but  carrying  out  the  long-established  policy  of  our  Government, 
a  policy  which  has  secured  to  us  respect  and  influence  abroad  and 
inspired  confidence  at  home." 

President  Jackson,  Texas  message,  Dec.  21,  1836. 

"  The  independence  of  other  nations  has  always  been  regarded  by  the 
United  States  as  a  question  of  fact  merely,  and  that  of  every  people  has 
been  invariably  recognized  by  them  whenever  the  actual  enjoyment  of 
it  was  accompanied  by  satisfactory  evidence  of  their  power  and  deter- 
mination permanently  and  effectually  to  maintain  it.  This  was  the 
course  pursued  by  the  United  States  in  acknowledging  the  independence 
of  Mexico  and  the  other  American  states,  formerly  under  the  dominion 
of  Spain.  The  United  States,  in  recognizing  Texas,  acted  in  perfect 
accordance  with  their  ordinary  and  settled  policy.  That  act,  however, 
did  not  proceed  from  any  unfriendly  spirit  towards  Mexico  and  must 
not  be  regarded  as  indicative  of  a  disposition  to  interfere  in  the  contest 
between  her  and  Texas." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr,  Castillo,  Mar.  17,  1837.     MSS.  Notes,  Mex. 

The  action  of  the  United  States  in  1837,  relative  to  the  recognition 
of  Texan  independence,  is  detailed  by  Sir  W.  Harcourt  (Historicus,  19) 
as  a  precedent  sustaining  the  position  assumed  by  him,  "that  recognition 
is  not  permissible  until  the  contest  is  won."  At  the  time  of  the  recog- 
nition by  the  United  States,  no  bona  fide  contest  was  going  on  between 
the  insurgent  province  and  its  former  sovereign. 
As  to  annexation  of  Texas,  see  infra,  ^  72. 

"  Near  eight  years  have  elapsed  since  Texas  declared  her  independence. 
During  all  that  time,  Mexico  has  asserted  her  rights  of  jurisdiction  and 
dominion  over  that  country,  and  has  endeavored  to  enforce  it  by  arms. 
Texas  has  successfully  resisted  all  such  attempts,  and  has  thus  afforded 
ample  proofs  of  her  ability  to  maintain  her  independence.  This  proof 
lias  been  so  satisfactory  to  many  of  the  most  considerable  nations  of  the 
world,  that  they  have  formally  acknowledged  the  independence  of  Texas 
and  established  diplomatic  relations  with  her.  Among  those  nations 
the  United  States  are  included,  and,  indeed,  they  set  the  example  which 
other  nations  have  followed.  Under  these  circumstances  the  United 
Slates  regard  Texas  as  in  all  respects  an  independent  nation,  fully  com- 
petent to  manage  its  own  affairs  and  possessing  all  the  rights  of  other 
independent  nations.    The  Government  of  the  United  States,  therefore, 

535 


§  70.]  INTERVENTION.  [CHAP.  III. 

will  not  consider  it  necessary  to  consult  any  other  nation  in  its  transac- 
tions with  the  Government  of  Texas." 

Mr.  Upshur,  Sec.  of  State,  to  Mr.  Almonte,  Dec.  1,  1843.    MSS.  Notes,  Mex. 

"  It  was  right  and  proper  that  the  envoy  extraordinary  and  minister 
plenipotentiary  from  the  United  States  should  be  the  first  to  recognize^ 
so  far  as  his  powers  extended,  the  provisional  Government  of  the 
French  Kepublic.  Indeed,  had  the  representative  of  any  other  nation 
preceded  you  in  this  good  work,  it  would  have  been  regretted  by  the 
President."  , 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Rush,  Mar.  31, 1848.     MSS.  Inst.,  France. 

"  In  its  intercourse  with  foreign  nations  the  Government  of  the  United 
States  has,  from  its  origin,  always  Recognized  de  facto  Governments. 
We  recognize  the  right  of  all  nations  to  create  and  re-form  their  polit- 
ical institutions  according  to  their  own  will  and  pleasure.  We  do  not 
go  behind  the  existing  Government  to  involve  ourselves  in  the  question 
of  legitimacy.  It  is  suflScient  for  us  to  know  that  a  Government  exists 
capable  of  maintaining  itself;  and  then  its  recognition  on  our  part 
inevitably  follows.  This  principle  of  action,  resulting  from  our  sacred 
regard  for  the  independence  of  nations,  has  occasioned  some  strange 
anomalies  in  our  history.  The  Pope,  the  Emperor  of  Eussia,  and  Presi- 
dent Jackson  were  the  only  authorities  on  earth  which  ever  recognized 
Don  Miguel  as  King  of  Portugal. 

"  Whilst  this  is  our  settled  policy,  it  does  not  follow  that  we  can  ever 
be  iudifierent  spectators  to  the  progress  of  liberty  throughout  the  world, 
and  especially  in  France.  We  can  never  forget  the  obligations  which 
we  owe  to  that  generous  nation  for  their  aid  at  the  darkest  period  of 
our  Revolutionary  war  in  achieving  our  own  independence.  These  obli- 
gations have  been  transmitted  from  father  to  son,  from  generation  to 
generation,  and  are  still  gratefully  remembered.  They  yet  live  freshly 
in  the  hearts  of  our  countrymen.  It  was,  therefore,  with  one  universal 
burst  of  enthusiasm  that  the  American  people  hailed  the  late  glorious 
revolution  in  France  in  favor  of  liberty  and  republican  government.  In 
this  feeling  the  President  strongly  sympathizes.  Warm  aspirations  for 
the  success  of  the  new  Republic  are  breathed  from  every  heart.  Liberty 
and  order  will  make  France  happy  and  prosperous.  Her  destinies,  under 
Providence,  are  now  in  the  hands  of  the  French  people.  Let  them  by 
their  wisdom,  firmness,  and  moderation  refute  the  slanders  of  their 
enemies,  and  convince  the  world  that  they  are  capable  of  self-govern- 
ment." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr,  Rush,  Mar.  Zi,  1848,  MSS,  Inst.,  France. 

"  The  prompt  recognition  of  the  new  Government  by  the  representa- 
tive of  the  United  States  at  the  French  court,  meets  my  full  and  un- 
qualified approbation,  and  he  has  been  authorized  in  a  suitable  manner 
to  make  known  this  fact  to  the  constituted  authorities  of  the  French 
536 


CHAP.  HI.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

Eepublic.  Called  upon  to  act  upon  a  sudden  emergency,  which  could 
not  have  been  anticipated  by  his  instructions,  he  judged  rightly  of  the 
feelings  and  sentiments  of  his  Government  and  of  his  countrymen,  when, 
in  advance  of  the  diplomatic  representatives  of  other  countries,  he  was 
the  first  to  recognize,  so  far  as  it  was  in  his  power,  the  free  Government 
established  by  the  French  people. 

"  The  policy  of  the  United  States  has  ever  been  that  of  non-interven- 
tion in  the  domestic  affairs  of  other  countries,  leaving  to  each  to  estab- 
lish the  form  of  government  of  its  own  choice.  While  this  wise  polic^^ 
will  be  maintained  toward  France,  now  suddenly  transformed  from  a 
Monarchy  into  a  Eepublic,  all  our  sympathies  are  naturally  enlisted  on 
the  side  of  a  great  people,  who,  imitating  our  examj>le,  have  resolved 
to  be  free.  That  such  sympathy'  should  exist  on  the  part  of  the  people 
of  the  United  States  with  the  friends  of  free  government  in  every  part 
of  the  world,  and  especially  in  France,  is  not  remarkable.  We  can 
never  forget  that  France  was  our  early  friend  in  our  eventful  Revolu- 
tion, and  generously  aided  us  in  shaking  oft'  a  foreign  yoke  and  becom- 
ing a  free  and  independent  people." 

President  Polk,  Special  Message,  Apr.  3, 1848. 

Correspondence  in  1349  between  Mr.  Buchanan,  Sec.  of  State,  and  Mr.  Rush^ 

minister  at  Paris,  with  regard  to  the  French  revolution  of  1848,  will  be 

found  in  Sen.  Ex.  Doc.  No.  53,  30th  Cong.,  Ist  sess. 
As  to  delay  in  recognizing  the  provisional  republican  Government  of  Rome  in 

1849,  see  Mr.  Clayton,  Sec.  of  State,  to  Mr.  Cass,  June  25,  1849.     MSS.  Inst., 

Papal  States. 

"  We,  as  a  nation,  have  ever  been  ready,  and  willing,  to  recognize 
any  Government,  de  facto,  which  appeared  capable  of  maintaining  its 
power ;  and  should  either  a  republican  form  of  government,  or  that  of 
a  limited  monarchy  (founded  on  a  popular  and  permanent  basis)  be 
adopted  by  any  of  the  states  of  Germany,  we  are  bound  to  be  the  first, 
if  possible,  to  hail  the  birth  of  the  new  Government,  and  to  cheer  it  in 
every  progressive  movement  that  has  for  its  aim  the  attainment  of  the 
priceless  and  countless  blessings  of  freedom." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Donelson,  July  8,  1849.     MSS.  Inst.,  Prussia. 
As  to  de  facto  governments,  see  supra  5  7. 

"  My  purpose,  as  freely  avowed  in  this  correspondence,  was  to  have 
acknowledged  the  independence  of  Hungary  had  she  succeeded  in 
establishing  a  Government  de  facto  ou  a  basis  sufficiently  permanent 
in  its  character  to  have  justified  me  in  doing  so,  according  to  the  usages 
and  settled  principles  of  this  Government ;  and  although  she  is  now 
fallen,  and  many  of  her  gallant  patriots  are  in  exile  or  in  chains,  I  am 
free  still  to  declare,  that  had  she  been  successful  in  the  maintenance  of 
such  a  Government  as  we  could  have  recognized,  we  should  have  been 
the  first  to  welcome  her  into  the  family  of  nations." 
President  Taylor,  Special  Message,  Mar.  28,  1850. 

637 


§  70.]  INTERVENTION.  [CHAP.  III. 

"  In  the  course  of  the  year  1848,  and  the  early  part  of  1849,  a  con- 
siderable number  of  Hungarians  came  to  the  United  States.  Among 
them  were  individuals  representing  themselves  to  be  in  the  confidence 
of  the  revolutionary  Government,  and  by  these  persons  the  President 
was  strongly  urged  to  recognize  the  existence  of  that  Government. 
In  these  applications,  and  in  the  manner  in  which  they  were  viewed  by 
the  President,  there  was  nothing  unusual;  still  less  was  there  anything 
unauthorized  by  the  law  of  nations.  It  is  the  right  of  every  inde- 
pendent state  to  enter  into  friendly  relations  with  every  other  inde- 
pendent state.  Of  course,  questions  of  prudence  naturally  arise  in 
reference  to  new  states  brought  by  successful  revolutions  into  the 
family  of  nations;  but  it  is  not  to  be  required  of  neutral  powers  that 
they  should  await  the  recognition  of  the  new  Government  by  the  parent 
state.  Xo  principle  of  public  law  has  been  more  frequently-  acted  upon, 
within  the  last  thirty  years,  by  the  great  powers  of  the  world  than  this. 
Within  that  period  eight  or  ten  new  states  have  established  indepen- 
dent Governments  within  the  limits  of  the  colonial  dominions  of  Spain 
on  this  continent ;  and  in  Europe  the  same  thing  has  been  done  by 
Belgium  and  Greece.  The  existence  of  all  these  Governments  was  recog- 
nized by  some  of  the  leading  powers  of  Europe,  as  well  as  by  the  United 
States,  before  it  was  acknowledged  by  the  states  from  which  they  had 
separated  themselves. 

"  If,  therefore,  the  United  States  had  gone  so  far  as  formally  to  ac- 
knowledge the  independence  of  Hungary,  although,  as  th«  event  has 
proved,  it  would  have  been  a  precipitate  step,  and  one  from  which  no 
benefit  would  have  resulted  to  either  party,  it  would  not,  nevertheless, 
have  been  an  act  against  the  law  of  nations,  provided  they  took  no 
part  in  her  contest  with  Austria." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Hulsemann,  Dec.  21,  1850,  MSS.  Notes, 
Germ.  St.  See  as  to  Mann's  agency  supra,  §  47,  where  this  note  of  Mr. 
Webster  is  given  in  full;  as  to  the  threat  that  such  agents  are  "spies," 
infra,  $  '347a. 

The  correspondence  in  respect  to  the  French  coup  d'etat  of  December,  1851,  is 
given  in  Senate  Ex.  Doc.  No.  19,  32d  Cong.,  1st  sess.  ;  House  Ex.  Doc.  No. 
34,  32d  Cong.,  Ist  sess.;  Senate  Ex.  Doc.  No.  7,  special  sess.,  1853. 

"  The  Government  of  Peru  does  not  deny,  but  on  the  contrary  ad- 
mits, that  adequate  provision  has  been  made  by  law  against  getting  up 
and  fitting  out  within  the  United  States  such  expeditions  as  it  com- 
l^lains  of,  and  that  the  Federal  authorities  have  been  vigilant  in  enforc- 
ing that  law.  It  does  not  impute  blame  to  this  Government  for  the 
expedition  of  Walker  and  his  associates  to  Nicaragua,  but  the  sole 
ground  of  complaint  is  the  recognition  as  a  Government  of  the  political 
power  established  in  ZSTicaragua  since  Walker  and  his  associates  went 
to  that  country.  The  United  States  regretted  as  much  as  Peru  could 
do  the  unhappy  political  dissensions  which  prevailed  for  a  long  time  in 
that  State,  and  the  disastrous  consequences  which  have  resulted  from 
538 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

them.  One  political  party,  for  the  ]jurpose  of  obtaining  advantage  over 
another,  sought  foreign  aid,  and  invited  Walker,  with  his  associates,  to 
join  its  ranks.  The  invitation  was  accepted.  So  long  as  there  was  a 
contest  for  power,  so  long  as  any  question  could  be  raised  as  to  the  per- 
sons in  whose  hands  the  Government,  actual  or  de  facto,  had  fallen,  this 
Government  did  nothing  which  could  afford  any  pretense  for  complaint 
to  any  party  in  the  State  of  Nicaragua,  or  to  any  foreign  power." 
Mr.  Marcy,  Sec.  of  State,  to  Mr.  Osma,  Sept.  24,  1856.    MSS.  Notes,  Peru. 

When  it  is  uncertain  which  of  two  titular  Executives  is  in  possession 
of  the  civil  authority  of  a  foreign  state,  diplomatic  representatives  from 
neither  will  be  received. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Irisarvi,  Oct.  28,  1856.    MSS.  Notes,  Cent.  Am. 

To  sustain  the  recognition  by  the  United  States  of  a  Mexican  Gov- 
ernment after  civil  war,  it  is  not  necessary  that  such  Government 
should  be  in  possession  of  the  city  of  Mexico.  It  is  enough  if  it  be 
"  obeyed  by  a  large  majority  of  the  country,  and  is  likely  to  continue." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  McLane,  Mar.  7,  1859.     MSS.  lust.,  Mex.    Same 

to  same.  May  25,  1859. 
In  Mr,  Buchanan's  view  of  his  administration,  published  in  1866,  a  narrative 

is  given  of  the  events  which  preceded  the  recognition  of  Juarez,  pp.  270 

ff;  and  see  tupra,  §  58. 

"  You  are,  of  course,  aware  that  the  election  of  last  November  resulted 
in  the  choice  of  Mr.  Abraham  Lincoln ;  that  he  was  the  candidate  of 
the  Republican  or  Antislavery  party;  that  the  preceding  discussion  had 
been  confined  almost  entirely  to  topics  connected,  directly  or  indirectly, 
with  the  subject  of  negro  slavery ;  that  everj^  Northern  State  cast  its 
whole  electoral  vote  (except  three  in  New  Jersey)  for  Mr.  Lincoln,  while 
in  the  whole  South  the  popular  sentiment  against  him  was  almost  abso- 
lutely universal.  Some  of  the  Southern  States,  immediately  after  the 
election,  took  measures  for  separating  themselves  from  the  Union,  and 
others  soon  followed  their  example.  Conventions  have  been  called  in 
South  Carolina,  Georgia,  Florida,  Alabama,  Mississippi,  Louisiana,  and 
Texas,  and  those  conventions,  in  all  except  the  last-named  State,  have 
passed  ordinances  declaring  their  secession  from  the  Federal  Govern- 
ment. A  Congress,  composed  of  representatives  from  the  six  first-named 
States,  has  been  assembled  for  some  time  at  Montgomery,  Ala.  By 
this  body  a  provisional  constitution  has  been  framed  for  what  it  styles 
the  '  Confederated  States  of  America.' 

"  It  is  not  improbable  that  persons  claiming  to  represent  the  States 
which  have  thus  attempted  to  throw  off  their  Federal  obligations  will 
seek  a  recognition  of  their  independence  by  the  Emperor  of  Russia.  In 
the  event  of  such  an  effort  being  made,  you  are  expected  by  the  Presi- 
<lent  to  use  such  means  as  may  in  your  judgment  be  proper  and  neces- 
sary to  prevent  its  success. 

"  The  reasons  set  forth  in  the  President's  message  at  the  opening  of 

530 


§  70.]  INTERVENTION.  [CHAP.  Ill, 

the  present  session  of  Congress  in  support  of  his  opinion  that  the  States 
have  no  constitutional  power  to  secede  from  the  Union,  are  still  unan- 
swered, and  are  believed  to  be  unanswerable.  The  grounds  upon  which 
they  have  attempted  to  justify  the  revolutionary  act  of  severing  the 
bonds  which  connect  them  with  their  sister  States  are  regarded  as 
wholly  insufficient.  This  Government  has  not  relinquished  its  consti- 
tutional jurisdiction  within  the  territory  of  those  States,  and  does  not 
desire  to  do  so. 

"  It  must  be  very  evident  that  it  is  the  right  of  this  Government  to 
ask  of  all  foreign  powers  that  the  latter  shall  take  no  steps  which  may 
tend  to  encourage  the  revolutionary  movement  of  the  seceding  States, 
or  increase  the  danger  of  disaffection  in  those  which  still  remain  loyal. 
The  President  feels  assured  that  the  Government  of  the  Emperor  will 
not  do  anything  in  these  affairs  inconsistent  with  the  friendship  which 
this  Government  has  always  heretofore  experienced  from  him  and  his 
ancestors.  If  the  independence  of  the  'Confederated  States'  should  be 
acknowledged  by  the  great  powers  of  Europe,  it  would  tend  to  disturb 
the  friendly  relations,  diplomatic  and  commercial,  now  existing  between 
those  powers  and  the  United  States.  All  these  are  consequences  which 
the  court  of  the  Emperor  will  not  fail  to  see  are  adverse  to  the  interests 
of  Eussia,  as  well  as  to  those  of  this  country. 

"  Your  particular  knowledge  of  our  political  institutions  will  enable 
you  to  explain  satisfactorily  the  causes  of  our  present  domestic  troubles, 
and  the  grounds  of  the  hope  still  entertained  that  entire  harmony  will 
soon  be  restored. 

Mr.  Black,  Sec.  of  State,  circular  to  U.  S.  ministers  abroad,  Feb.  28, 1861.    MSS. 
Inst.,  Russia  ;  Dip.  Corr.,  1861. 

"  My  predecessor,  in  his  dispatch,  No.  10,  addressed  to  you  on  the 
28th  of  February  last,  instructed  you  to  use  all  proper  and  necessary 
measures  to  prevent  the  success  of  efforts  which  may  be  made  by  per- 
sons claiming  to  represent  those  States  of  this  Union  in  whose  name  a 
provisional  Government  has  been  announced,  to  procure  a  recognition 
of  their  independence  by  the  Government  of  Spain. 

"  I  am  now  instructed  by  the  President  of  the  United  States  to  inform 
you  that,  having  assumed  the  administration  of  the  Government  in  pur- 
suance of  an  unquestioned  election  and  of  the  directions  of  the  Consti- 
tution, he  renews  the  injunction  which  I  have  mentioned,  and  relies  upon 
the  exercise  of  the  greatest  possible  diligence  and  fidelity  on  your  part 
to  counteract  and  prevent  the  designs  of  those  who  would  invoke  foreign 
intervention  to  embarrass  or  overthrow  the  Republic. 

"  When  you  reflect  on  the  novelty  of  such  designs,  their  unpatriotic 
and  revolutionary  character,  and  the  long  train  of  evils  which  must  fol- 
low directly  or  consequentially  from  even  their  partial  or  temporary 
success,  the  President  feels  assured  that  you  will  justly  appreciate  and 
cordially  approve  the  caution  which  prompts  this  communication. 
540 


CHAP.  III.]  EECOGNITION    OF    SOVEREIGNTY.  [§  79. 

"  I  transmit  herewith  a  copy  of  the  address  pronounced  by  the  Presi- 
dent on  taking  the  constitutional  oath  of  office.  It  sets  forth  clearly 
the  errors  of  the  misguided  partisans  who  are  seeking  to  dismember  the 
Union,  the  grounds  on  which  the  conduct  of  those  partisans  is  disal- 
lowed, and  also  the  general  policy  which  the  Government  will  pursue 
with  a  view  to  the  preservation  of  domestic  peace  and  order,  and  the 
maintenance  and  preservation  of  the  Federal  Union. 

"  You  will  lose  no  time  in  submitting  this  address  to  the  Spanish 
minister  of  foreign  affairs,  and  in  assuring  him  that  the  President  of 
the  United  States  entertains  a  full  confidence  in  the  speedy  restoration 
of  the  harmony  and  unity  of  the  Government  by  a  firm,  yet  just  and 
liberal  bearing,  co-operating  with  the  deliberate  and  loyal  action  of  the 
American  people. 

"The  United  States  have  had  too  many  assurances  and  manifesta- 
tions of  the  friendship  and  good-will  of  Her  Catholic  Majesty  to  enter- 
tain any  doubt  that  these  considerations,  and  such  others  as  your  large 
experience  of  the  working  of  our  Federal  system  will  suggest,  will  have 
their  just  influence  with  her,  and  will  prevent  Her  Majesty's  Govern- 
ment from  yielding  to  solicitations  to  intervene  in  any  unfriendly  way 
in  the  domestic  concerns  of  our  country." 

Mr.  Seward,  Sec.  of  State,  circular,  mutatis  mutandis,  to  U.  S.  ministers  abroad, 
Mar.  9,  1861.     MSS.  Inst.,  Spain;  Dip.  Corr.,  1861. 

"To  recognize  the  independence  of  a  new  state,  and  so  favor,  possi- 
oly  determine,  its  admission  into  the  family  of  nations,  is  the  highest 
possible  exercise  of  sovereign  power,  because  it  affects  in  any  case  the 
welfare  of  two  nations,  and  often  the  i)eace  of  the  world.  In  the  Euro- 
pean system  this  power  is  now  seldom  attempted  to  be  execised  with- 
out invoking  a  consultation  or  congress  of  nations.  That  system  has 
not  been  extended  to  this  continent.  But  there  is  even  a  greater  neces- 
sity for  j)rudence  in  such  cases  in  regard  to  American  states  than  in 
regard  to  the  nations  of  Europe.  A  revolutionary  change  of  dynasty, 
or  even  a  disorganization  and  recombination  of  one  or  many  states, 
therefore,  do  not  long  or  deeply  affect  the  general  interest  of  society, 
because  the  ways  of  trade  and  habits  of  society  remain  the  same.  But 
a  radical  change  effected  in  the  political  combinations  existing  on  the 
continent,  followed,  as  it  probably  would  be,  by  moral  convulsions  of 
incalculable  magnitude,  would  threaten  the  stability  of  society  through- 
onr  the  world. 

"Uumanity  has,  indeed,  little  to  hope  for  if  it  shall,  in  this  age  of 
high  improvement,  be  decided  without  a  trial  that  the  principle  of 
international  law  which  regards  nations  as  moral  persons,  bound  so  to 
act  as  to  do  to  each  other  the  least  injury  and  the  most  good,  is  merely 
an  abstraction  too  refined  to  be  reduced  into  practice  by  the  enlight- 
ened nations  of  western  Europe.  Seen  in  the  light  of  this  principle, 
the  several  nations  of  the  earth  constitute  one  great  Federal  Republic. 

641 


§  70.]  INTERVENTION.  [CHAP.  III. 

When  one  of  them  casts  its  suffrages  for  the  admission  of  a  new  mem- 
ber into  that  Eepublic,  it  ought  to  act  under  a  profound  sense  of  moral 
obligation,  and  be  governed  by  considerations  as  pure,  disinterested, 
and  elevated  as  the  general  interest  of  society  and  the  advancement  of 
human  nature. 

"The  British  Empire  itself  is  an  aggregation  of  divers  communities 
which  cover  a  large  portion  of  the  earth  and  embrace  one-flfth  of  its 
entire  population.  Some,  at  least,  of  these  communities  are  held  to 
their  places  in  that  system  by  bonds  as  fragile  as  the  obligations  of  our 
own  Federal  Union.  The  strain  will  some  time  come  which  is  to  try 
the  strength  of  these  bonds,  though  it  will  be  of  a  different  kind  from 
that  which  is  trying  the  cords  of  our  confederation.  Would  it  be  wise 
for  Her  Majesty's  Government,  on  this  occasion,  to  set  a  dangerous  prec- 
edent or  provoke  retaliation?  If  Scotland  and  Ireland  are  at  last 
reduced  to  quiet  contentment,  has  Great  Britain  no  dependency,  island,, 
or  province  left  exposed  along  the  whole  circle  of  her  Empire,  from 
Gibraltar  through  the  West  Indies  and  Canada  till  it  begins  again  on 
the  southern  extremity  of  Africa?" 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  Apr.  10,  1861.     MSS.  Inst.,  Gr.  Brit.; 
Dip.  Corr.,  1861. 

Sir  G.  C.  Lewis  "is  supposed  to  have  maintained  that  England  would 
not  be  entitled  to  recognize  the  Southern  Confederacy  until  the  Fed- 
eralists had  previously  done  so.  But  the  secretary  of  war  is  far  too- 
accurate  a  thinker  and  sj^eaker  to  have  laid  down  any  such  doctrine. 
The  rule  he  propounded  was  precisely  that  acted  on  by  Mr.  Canning 
in  the  case  of  the  South  American  Kepublics,  viz,  that  where  a  doubt- 
ful and  bona  fide  straggle  for  supremacy  is  still  maintained  by  the  sov- 
ereign power,  the  insurgents  jam  flagrante  hello  cannot  be  said  to  have 
established  a  de  facto  independence." 

Historicus,  8. 

A  revolutionary  Government  is  not  to  be  recognized  until  it  is  estab- 
lished by  the  great  body  of  the  population  of  the  state  it  claims  to 
govern. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Culver,  Nov.  19,  186'2.     MSS.  lust.,  Veuez, 
See  same  to  same,  Feb.  11,  1864  :  Mar.  21,  1864. 

"This  Government  has,  and  it  must  insist  on,  the  right  to  determine 
for  itself  when  new  authorities,  established  in  a  foreign  state,  can  claim 
from  it  a  formal  recognition  of  them  as  an  established  power.  The 
regulation  of  the  exercise  of  that  right  upon  principles  of  justice  and 
according  to  facts  established,  with  an  absence  of  all  favor  and  caprice, 
is  hardly  more  important  to  the  universal  interests  of  society  than  it  is 
to  those  of  the  United  States  themselves. 

"  This  Government  has,  at  the  same  time  under  the  law  of  nations 
and  by  treaty,  a  clear  right  to  have  its  properly  ai^pointed  agents  resid- 
ing in  Venezuela,  although  the  authorities  with  which  it  has  heretofore 
treated  have  been  subverted,  more  or  less  completely,  and  to  communi- 
542 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

cate  with  the  new  authorities  upon  international  matters  affecting  either 
the  Government  of  the  United  States  or  its  citizens.  During  the  jyeriod, 
which,  in  case  of  any  domestic  revolution,  may  be  either  short  or  long, 
the  agents  of  this  Government  have  a  right  to  confer  upon  such  matters 
with  the  actual  authorities  who  are  conducting  the  aflairs  of  Venezuela, 
and  while  the  agent  is  bound  to  avoid  all  interference  in  the  domestic 
questions  of  that  state,  he  is  entitled  to  be  heard  as  the  representative 
of  the  United  States,  without  a  previous  recognition  of  the  existing 
authorities,  in  place  of  those  which  have  been  either  more  or  less  efiec- 
tually  supplanted." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Culver,  Mar.  9,  18G3.     MSS.  Inst.,  Venez. 

The  Government  of  the  United  States,  in  18G4,  while  recognizing  the 
Government  of  Juarez  as  the  rightful  Government  of  Mexico,  at  the 
same  time  recognized  both  parties  to  the  civil  war  there  raging  as  bel- 
ligerents. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Geofroy,  Apr.  6,  1864.  MSS.  Notes,  France. 
See  supra,  $  58. 

Eeception  in  1865  by  the  Government  of  the  United  States  of  com- 
mercial agents  representing  the  Imperial  Government  of  Mexico,  then 
possessing  some  of  the  chief  ports  of  Mexico,  is  not  to  be  regarded  as  a 
recognition  of  the  Imperial  Government,  though  such  agents  were  per- 
mitted in  the  ports  to  which  they  were  sent  to  attest  invoices  and  mani- 
fests. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Romero,  Aug.  9,  1865.     MSS.  Notes,  Mex. 

As  to  Mexican  revolutions,  see  supra,  §  58. 

As  to  informal  reception  of  agents  from  unrecognized  states,  see  supra,  §  69. 

For  an  account  of  the  intervention  of  Napoleon  III  in  Mexico,  see  1  Philliraore 
Int.  Law  (3  ed.),  607.  The  author  criticises  the  action  of  the  United 
States  in  refusing  to  acknowledge  the  de  facio  sovereignty  of  Maximilian. 
See  also  2  ibid.,  25.     See,  however,  1  Calvo  droit  int.  (3  ed.),  300. 

When  there  are  two  rival  titular  Governments  contesting  the  sov- 
ereignty of  a  South  American  state,  the  Government  of  the  United 
States  will  not,  in  cases  of  doubt,  determine  as  to  the  title  of  either, 
but  will  wait  the  course  of  events. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Brazael,  Aug.  27,  1868.     MSS.  Notes,  Venez. 

"Tour  dispatches  of  the  10th  of  November,  Nos.  5  and  6,  have  been 
received.  In  your  No.  5  you  announce  that  a  revolution  has  taken  place 
in  Costa  Rica,  which  was  effected  by  the  mere  display  of  military  forc«, 
unresisted,  and  without  the  eflusion  of  blood.  You  further  announce 
that  in  that  movement  the  President,  Seuor  Castro,  was  deposed,  and 
the  first  provisional  substitute,  Sefior  Jimenez,  had  assumed  the  execu- 
tive power.  The  further  transactions  mentioned  are  an  acquiescence 
of  the  several  provinces,  the  suspension  of  the  constitution,  and  the 
call  of  a  national  convention  to  adopt  a  new  constitution.    As  a  con- 

543 


§  70.]  INTERVENTION.  [CHAP.  III. 

sequence  of  these  events,  you  have  recognized  the  new  President,  sub- 
ject to  directions  on  the  occasion  from  the  President  of  the  United 
States. 

"  It  does  not  belong  to  the  Government  or  people  of  the  United  States 
to  examine  the  causes  which  have  led  to  this  revolution,  or  to  pronounce 
upon  the  exigency  which  they  created.  Nevertheless,  great  as  that 
exigency  may  have  been,  the  subversion  of  a  free  reiDublican  constitu- 
tion, only  nine  years  old,  by  military  force,  in  a  sister  American  Repub- 
lic, cannot  but  be  an  occasion  of  regret  and  apprehension  to  the  friends 
of  the  system  of  republican  government,  not  only  here,  but  throughout 
the  world. 

"  It  only  remains  to  say  that  the  course  which  you  have  pursued  is 
approved,  insomuch  as  it  appears  that  there  is  not  only  no  civil  war, 
but  no  Government  contending  with  the  one  which  has  been  estab- 
lished." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Blair,  Dec.  1,  1868.     MSS.  last.,  Costa  Rica. 
^        Dip.  Corr.,  1868. 

The  circumstances  attending  the  recognition,  on  September  7,  1870, 
of  the  "National  Defense  Committee"  of  France  as  the  "  Government 
of  France"  are  given  in  the  documents  accompanying  President  Hayes's 
special  message  of  February  6, 1878.  On  September  7  Mr.  Washburne 
sent  to  Mr.  Favre  (who,  upon  the  change  of  government  a  few  days 
before  was  appointed  minister  of  foreign  affairs)  a  letter  containing  the 
following :  "  It  affords  me  great  pleasure  to  advise  you  that  I  have  this 
morning  received  a  telegraphic  dispatch  from  my  Government  instruct- 
ing me  to  recognize  the  Government  of  the  National  Defense  as  the 
Government  of  France."  On  September  8  Mr.  Favre  replied  in  a  letter 
beginning  as  follows  :  "Hook  upon  it  as  a  happy  augury  for  the  French 
Republic  that  it  has  received  as  its  first  diplomatic  support  the  recog- 
nition of  the  Government  of  the  United  States." 

"  The  regular  Government  of  France,  constituted  by  the  will  of  the 
people  as  expressed  through  the  National  Assembly  at  Bordeaux,  hav- 
ing been  driven  from  Paris  by  the  insurrectionary  movement  and  estab- 
lished itself  at  Versailles,  I  deem  it  my  duty  to  follow  that  Government, 
and  shall,  therefore,  on  to  morrow  or  the  next  day,  remove  thither 
with  the  legation,  leaving  one  of  the  secretaries  in  charge  here.  Everj 
member  of  the  diplomatic  corps  will  also  leave." 

Mr.  Washburne  to  Mr.  Fish,  Mar.  19,  1871.    MSS.  Dispatches,  France. 

"  As  soon  as  I  learned  that  a  Repub*lic  had  been  proclaimed  at  Paris, 
and  that  the  people  of  France  had  acquiesced  in  the  change,  the  minis- 
ter of  the  United  States  was  directed  by  telegraph  to  recognize  it,  and 
to  tender  my  congratulations  and  those  of  the  people  of  the  United 
States.  The  re-establishment  in  France  of  a  system  of  government  dis- 
connected with  the  dynastic  traditions  of  Europe  appeared  to  be  a 
proper  subject  for  the  felicitations  of  Americans.  Should  the  present 
struggle  result  in  attaching  the  hearts  of  the  French  to  our  simpler 
forms  of  representative  government,  it  will  be  a  subject  of  still  further 
544 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

satisfaction  to  our  people.  While  we  make  no  effort  to  iuipose  our 
institutions  upon  the  inhabitants  of  other  countries,  and  while  we  ad- 
here to  our  traditional  neutrality  in  civil  contests  elsewhere,  we  cannot 
be  indifferent  to  the  spread  of  American  political  ideas  in  a  great  and 
highly  civilized  country  like  France." 

President  Grant,  Second  Annual  Message,  1870. 

"  Eeferring  to  your  note  No.  195,  concerning  the  election  of  the  Duke 
of  Aosta  as  King  of  Spain,  I  have  to  say  that  on  the  19th  of  Novem- 
ber Mr.  Eoberts  called  to  officially  inform  me  of  that  fact.  I  received 
the  information  without  an  intimation  of  the  course  that  will  be  pur- 
sued by  his  Government.  It  has  been  the  policy  of  the  United  States 
to  recognize  the  Governments  de  facto  of  the  countries  with  which  we 
hold  diplomatic  relations.  Such  was  our  course  when  the  Eepublic 
was  established  in  France  in  1848,  and  again  in  1870,  and  in  each  case 
accepted  by  the  French  people.  Such  was  our  course  in  Mexico  when 
the  Eepublic  was  maintained  by  the  people  of  that  country  in  spite  of 
foreign  efforts  to  establish  a  monarchy  by  military  force.  We  have 
always  accepted  the  general  acquiescence  of  the  people  in  a  political 
change  of  government  as  a  conclusive  evidence  of  the  will  of  the  nation. 
When,  however,  there  has  not  been  such  acquiescence,  and  armed  re- 
sistance has  been  shown  to  changes  made  or  attempted  to  be  made 
under  the  form  of  law,  the  Dnited  States  have  applied  to  other  nations 
the  rule  that  the  organization  which  has  i)ossessiou  of  the  national 
archives  and  of  the  traditions  of  Government,  and  which  has  been 
inducted  to  power  under  the  forms  of  law,  must  be  presumed  to  be  the 
exponent  of  the  desires  of  the  people  until  a  rival  political  organization 
shall  have  established  the  contrary.  Your  course  in  the  present  case 
will  be  governed  by  this  rule. 

"  Should  there  be  circumstances  which  lead  you  to  doubt  the  pro- 
priety of  recognizing  the  Duke  of  Aosta  as  King  of  S])ain,  it  will  be 
easy  to  communicate  with  the  Department  by  telegraph  and  ask  in- 
structions. Should  there  be  no  such  circumstances,  the  general  policy 
of  the  United  States,  as  well  as  their  interests  in  the  present  relations 
with  Spain,  call  for  an  early  and  cheerful  recognition  of  the  change 
which  the  nation  has  made." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Dec.  1(5,  1870.     MSS.  Inst.,  Spain;  For. 
Rel.,  1871. 

"  This  Government  has  never  recognized  Cabral  as  even  entitled  to 
the  rights  of  a  belligerent.  Certainly,  therefore,  it  cannot  acknowledge 
any  claim  of  his  to  rule  any  part  of  the  territory  of  the  Dominican  Ee- 
public. It  is  perhaps  superfluous  to  add  that  this  Government  has  no 
connection,  director  indirect,  with  the  association  which  has  bought  or 
leased  from  Boez  certain  territory  around  the  Bay  of  Samana.  The 
enterprise  adverted  to  has  no  other  claims  upon  us  than  other  similar 
enterprises  of  citizens  of  the  United  States  hi  foreign  countries,  which 

S.  Mis.  162— VOL.  I 35  ^^^ 


§  70.]  INTERVENTION.  [CHAP.  III. 

must  be  audertaken  at  their  owu  risk  and  subject  to  the  laws  of  such 
countries." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  Mar.  26,  1873.     MSS.  Inst.,  Hayti. 

"Your  dispatch  ISTo.  379,  on  the  subject  of  the  reception  of  the  Papal 
nuncio,  and  your  visit  to  him,  has  been  read  with  much  interest. 

"  Wliile  the  probabilities  seem  to  be  almost  entirely  against  the  pos- 
sibility of  the  restoration  of  any  temporal  power  to  the  Pope,  he  is  still 
recognized  as  a  sovereign  by  many  of  the  powers  of  the  world,  which 
receive  from  him  diplomatic  representatives  in  the  person  of  either  a 
nuncio  or  a  legate,  or  possibly  in  some  other  capacity,  and  which  pow- 
ers also  accredit  to  him  certain  diplomatic  representatives. 

"  With  all  such  arrangements  this  Government  abstains  from  inter- 
ference or  criticism.  It  is  the  right  of  those  powers  to  determine  such 
questions  for  themselves;  and  when  one  of  them,  at  whose  court  this 
Government  has  a  representative,  receives  a  representative  from  the 
Pope  of  higher  rank  than  that  of  the  representative  of  the  United 
States,  it  becomes  the  duty  of  the  latter  to  observe  toward  the  Pope's 
representative  the  same  courtesies  and  formality  of  the  first  visit,  pre- 
scribed by  the  conventional  rules  of  intercourse  and  ceremonial,  and  of 
the  precedence  of  diplomatic  agents,  which  have  been  adoi^ted,  and 
almost  invariably  acted  upon  for  the  last  sixty  years. 

"  In  the  case  which  forms  the  subject  of  your  very  interesting  dis- 
patch, yon  pursued  the  course  which  alone  would  have  been  expected 
from  one  of  your  accustomed  prudence,  and  of  your  experience  and  famil- 
iarity with  the  proprieties  of  such  occasions." 

Mr.  Fish,  Sec.  of  State,  to  Mr,  Gushing,  June  4,  1875.     MSS.  Inst.,  Spain  ;  For. 
Rel.,  1875. 

The  question  of  the  sovereignty  of  the  Ottoman  Porte  over  Tripoli 
is  one  as  to  which,  in  1876,  the  United  States  was  not  ready  to  declare 
its  determination,  but  which  was  held  to  be  proper  for  future  diplomatic 
settlement. 

Mr.  Fish,  Sec.  of  State,  to  Aristarchi  Bey,  May  3,  1876.     MSS.  Notes,  Turkey. 
For  an  elaborate  exposition  of  the  relations  of  the  United  States  to  Tripoli,  see 

Mr.  Fish,  Sec.  of  State,  to   Aristarchi  Bey,  Sept.  18,  1876.     MSS.  Notes, 

Turkey.     See,  also,  supra,  §  164. 

"  It  has  been  the  custom  of  the  United  States,  when  such  (revolu- 
tionary) changes  of  government  have  Heretofore  occurred  in  Mexico,  to 
recognize  and  enter  into  ofiicial  relations  with  the  de  facto  Government 
as  soon  as  it  shall  appear  to  have  the  apjjroval  of  the  Mexican  jieople, 
and  should  manifest  a  disposition  to  adhere  to  the  obligations  of  trea- 
ties and  international  friendship." 

President  Hayes,  First  Annual  Message,  1877.     See  supra,  $  58.     As  to  de  facto 
governments  see  supra,  ^  7. 

"  The  Government  of  the  United  States  in  its  dealings  with  the  Mexi- 
can Republic  has  aimed  to  pursue  not  merely  a  just  but  a  generous  and 
546 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

friendly  course.  While  earnest  to  guard  and  protect  the  rights  of  its 
own  citizens  and  the  safety  of  its  own  territory,  it  does  not  seek  to  in- 
tervene in  i^olitical  contests  or  changes  of  admiuistratiou.  It  is  accus- 
tomed to  accept  and  recognize  the  results  of  a  popular  choice  in  Mexico, 
and  not  to  scrutinize  closely  the  regularity  or  irregularity  of  the  methods 
by  which  Presidents  are  inaugurated.  In  the  present  case  it  waits  be- 
fore recognizing  General  Diaz  as  the  President  of  Mexico  until  it  shall 
be  assured  that  his  election  is  approved  by  the  Mexican  people,  and 
that  his  administration  is  possessed  of  stability  to  endure,  and  of  dispo- 
tion  to  comply  with  the  rules  of  international  comity  and  the  obliga- 
tions of  treaties. 

"  Such  recognition,  if  accorded,  would  imply  something  more  than  a 
mere  formal  assent.  It  would  imply  a  belief  that  the  Government  so 
recognized  will  faithfully  execute  its  duties  and  observe  the  spirit  of  its 
treaties.  The  recognition  of  a  President  in  Mexico  by  the  United  States 
has  an  important  moral  iniluence  which,  as  you  explain,  is  appreciated 
at  the  capital  of  that  Eepublic.  It  aids  to  strengthen  the  power  and 
lengthen  the  tenure  of  the  incumbent,  and  if,  as  you  say,  the  example 
of  the  United  States  in  that  regard  is  one  that  other  nations  are  dis- 
posed to  follow,  such  recognition  would  not  be  without  effect,  both  upon 
the  internal  and  the  external  peace  of  Mexico.  You  justly  remark  that 
in  fifty  years  there  have  been  about  sixty  changes  of  administration  in 
Mexico,  and  it  may  be  added  that  those  administrations  have  been  long- 
est lived  that  were  most  faithful  and  friendly  in  the  discharge  of  their 
treaty  obligations  to  the  United  States. 

"  When  the  recent  revolution  resulted  in  placing  General  Diaz  in  the 
position  of  chief  magistrate,  this  Government  learned  with  satisfaction 
that  he  was  desirous  that  the  obligations  of  Mexico,  under  the  treaty  of 
July  4,  1868,  between  the  two  countries,  should  be  faithfully  observed, 
and  that  he  had  accordingly  sanctioned  the  prompt  payment  of  the  in- 
stallment of  $250,501  in  gold. 

"  But  it  is  a  subject  of  grave  regret  that  in  other  respects  the  customs 
of  friendly  intercourse  and  the  obligations  of  treaties  have  been  neg- 
lected, disregarded,  or  violated.  Doubtless,  in  many  cases,  the  cen- 
tral Government  was  powerless  to  prevent  these  infractions.  But  they 
are  such  as  this  Government  cannot  allow  to  pass  without  remonstrance, 
nor  without  insisting  that  it  is  the  duty  of  a  friendly  i)ower  to  use  the 
means  at  its  disposal  to  check  or  rexness  them.  There  have  been  raids 
and  depredations  upon  the  Texan  frontier;  theft,  murder,  arson,  and 
plunder;  violation  of  i)Ost-ofljces  and  cnstom-houses ;  incursions  by 
armed  men  to  destroy  life  or  property.  Cattle-stealing  has  become  a 
profitable  occupation.  Military  officials  posted  to  protect  the  frontier 
are  said  to  have  protected  the  robbers.  Forced  loans  have  been  de- 
manded, and  American  citizens  have  been  compelled  to  submit  to  un- 
just and  unequal  exactions.  Within  the  past  few  weeks  the  guides  of 
an  American  commander  have  been  seized  and  carried  into  the  interior. 

647 


^N  70  ]  INTERVENTION.  [CHAP.  III. 

with  threats  of  summary  execution  ;  and  a  consul  of  the  United  States, 
in  gross  violation  of  international  comity,  has  been  imprisoned.  For 
each  and  all  of  these  acts,  many  of  them  committed,  if  not  with  the 
sanction  at  least  in  the  name  of  the  Government  of  Mexico,  not  one 
single  man,  so  far  as  is  known  to  this  Government,  has  been  punished. 

"It  is  not  diflBcult  to  believe  that  General  Diaz  and  his  minister  of 
foreign  affairs  earnestly  desire  friendly  relations  and  recognition  on  the 
part  of  the  United  States,  and  it  is  gratifying  to  receive  the  assurances 
unofficially  made  through  you  that  they  are  disposed  to  adjust  and  rec- 
tify these  complaints  and  grievances,  and  are  not  unwilling  to  consent 
to  some  arrangement  for  concerted  action  between  the  military  com- 
manders of  the  two  countries  on  the  frontier  for  the  preservation  of 
peace  and  order  and  the  protection  of  life  and  property.  It  is  natural 
that  Mexican  statesmen  should  urge  upon  you  the  argument  that  the 
restoration  of  official  relations  between  the  two  Governments  would 
open  the  way  toward  such  an  adjustment.  But  it  is  natural,  on  the 
other  hand,  that  the  Government  of  the  United  States  should  be  dis- 
posed to  believe  that  some  guarantee  of  such  an  arrangement  should  be 
made  the  condition  precedent  to  any  recognition,  rather  than  to  trust 
to  the  ijossibility  that  it  may  ultimately  follow. 

"In  continuing  your  present  unofficial  and  informal  communications 
with  the  Mexican  Government,  you  may  present  these  views,  in  whole 
or  in  part,  at  your  own  discretion,  not  failing,  however,  to  let  it  be 
clearly  understood  that  while  the  Government  of  the  United  States 
seeks  amity  and  cordial  relations  with  their  sister  Republic,  they  prefer 
to  await  some  evidence  that  their  friendship  will  be  reciprocated." 

Mr.   F.  W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Foster,  May  16,  1877.     MSS. 
Inst.,  Mex. ;  For.  Rel.,  1877.     See  further,  as  to  Mexico,  supra,  $  58. 

"  The  capacity  of  a  state,  in  itself,  for  recognition,  and  the  fact  of 
recognition  by  other  states,  are  two  different  things.  Eecognition  is 
not  an  act  wholly  depending  on  the  constitutionality  or  completeness  of 
a  change  of  government,  but  is  not  infrequently  influenced  by  the  needs 
of  the  mutual  relations  between  the  two  countries.  When  radical 
changes  have  taken  place  in  the  domestic  organization  of  the  country, 
or  when  they  seem  to  be  contemplated  in  its  outward  relations,  it  is 
often  a  matter  of  solicitude  with  this  Government  that  some  misunder- 
standing should  exist  that  the  rights  acquired  by  our  citizens  through 
the  operation  of  treaties  and  other  diplomatic  engagements,  shall  not 
be  affected  by  the  change.  In  other  words,  while  the  United  States 
regard  their  international  compacts  and  obligations  as  entered  into  with 
nations  rather  than  Tvith  political  Governments,  it  behooves  them  to  be 
watchful  lest  their  course  toward  a  Government  should  affect  the  rela- 
tions to  the  nation.  Hence,  it  has  been  the  customary  policy  of  the 
United  States  to  be  satisfied  on  this  point,  and  doing  so  is  in  nowise  an 
548 


CHAP.  III.]  RECOGNITION    OF    SOVEREIGNTY.  [§  70. 

implication  of  doubt  as  to  the  legitimacy  of  tiie  internal  change  which 
may  occur  in  another  state. 

"Pending  formal  recognition,  however,  it  is  not  to  be  supposed  that 
any  of  the  customary  business  relations  or  civil  courtesies  are  abruptly 
terminated.  The  actual  lormula  of  recognition  is  unn)istakable,  and, 
short  of  that  evident  step,  the  diplomatic  fiction  of 'olUcious'  intercourse, 
or  'unofficial'  action  is  elastic  enough  to  admit  of  continuing  ordinary 
intercourse,  for  the  most  part,  without  rupture  of  any  of  its  varied 
parts." 

Mr.  Evarts,  Sec.  of  Stale,  to  Mr.  Baker,  June  14,  1871).     MSS.  lust.,  Venez. 

"As  a  general  rule  of  foreign  policy,  obtaining  since  the  foundation 
of  our  Government,  the  recognition  of  a  foreign  Government  by  this  is 
not  dependent  on  right,  but  on  fact.  For  this  reason,  when  a  change 
occurs  in  the  administration  of  a  nation,  and  the  new  authorities  are  in 
unopposed  possession  of  the  full  machinery  of  Government,  with  duly 
appointed  public  officers  acting  in  its  name,  and  evincing  the  purpose 
as  well  as  the  power  to  carry  out  the  ints  rnational  obligations  of  the 
state,  recognition  would  follow,  as  a  matter  of  course,  whatever  might 
be  the  personal  character  of  the  head  of  the  new  Government,  or  what- 
ever the  nature  of  his  rule,  so  long  as  no  considerations  of  policy  directly 
aflecting  the  relations  between  his  country  and  this  intervene  to  post- 
pone such  a  result." 

Mr.   Himter,   Acting   Sec.  of  State,  to  Mr.   Baker,  Oct.    3,  1879.     MSS.  Inst., 
Venez. 

A  recognition  by  the  Secretary  of  State  of  the  emissary  of  a  foreign 
Government  as  a  "political  agent"  of  such  Government,  does  not  by 
itself  invest  such  emissary  with  a  diplomatic  character. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Fish,  Apr.  15,  1881.     MSS.  Inst.,  Switz. 

"  Should  unforeseen  and  unfortunate  circumstances  ever  bring  it  into 
question,  the  United  States  will  be  prepared  to  repeat  and  enforce  the 
principle  declared  by  its  highest  authority,  more  than  half  a  century 
ago, that  'with  the  Governments  [of  the  American  Continent]  which  have 
declared  their  independence  and  maintained  it,  and  whose  independence 
we  have  on  great  consideration  and  ou  just  principles  acknowledged, 
we  could  not  view  any  interposition  for  the  purpose  of  opi)ressing  or 
controlling  in  any  other  manner,  their  destiny,  by  an  European  power, 
in  any  other  light  than  as  the  manifestation  of  an  unfriendly  disposition 
towards  the  United  States.'" 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Logan,  May  7,  1881.     MSS.  Inst.,  Cent.  Am. 

"In  your  last  dispatch  you  informed  this  Department  that  the  Chilian 
Government  refused  absolutely  to  recognize  General  Pi^rola  as  repre- 
senting the  civil  authority  in  Peru,  and  that  Senor  Calderon  was  at  the 

head  of  a  provisional  Government. 

549 


§  70.]  INTERVENTION.  [CHAP.  III. 

"If  the  Calderou  Government  is  supported  by  tbe  character  and 

intelligence  of  Peru,  and  is  really  endeavoring-  to  restore  constitutional 
government  with  a  view  both  to  order  within  and  negotiation  with 
Chili  for  peace,  you  may  recognize  it  as  the  existing  provisional  Gov- 
ernment, and  render  what  aid  you  can  by  advice  and  good  offices  to 
that  end. 

"  Mr.  Elmore  has  been  received  by  me  as  the  confidential  agent  of 
such  j)rovisional  Government." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Christiancy,  May  9,  1881.     MSS.  Inst.,  Peru; 
For.  Eel.,  1881. 

"  Special  envoy  extraordinary  leaves  Washington  for  Peru  immedi- 
ately.    Continue  recognition  of  Calderon  Government." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Hurlbut  (telegram),  Nov.  26,  1881.    MSS.  Inst., 
Peru  ;  For.  Eel.,  1861. 

"The  contest  between  Bolivia,  Chili,  and  Peru  has  passed  from  the 
stage  of  strategic  hostilities  to  that  of  negotiation,  in  which  the  coun- 
sels of  this  Government  have  been  exercised.  The  demands  of  Chili 
for  absolute  cession  of  territory  have  been  maintained,  and  accepted  by 
the  party  of  General  Iglesias  to  the  extent  of  concluding  a  treaty  of 
peace  with  the  Governmont  of  Chili  in  general  conformity  with  the 
terms  of  the  protocol  signed  in  May  last  between  the  Chilian  com- 
mander and  General  Iglesias.  As  a  result  of  the  conclusion  of  this 
treaty.  General  Iglesias  has  been  Ibrmally  recognized  by  Chili  as 
President  of  Peru,  and  his  government  installed  at  Lima,  which  has 
been,  evacuated  by  the  Chilians.  A  call  has-been  issued  by  General 
Iglesias  for  a  representative  assembly,  to  be  elected  on  the  13th  of 
January,  and  to  meet  at  Lima  on  the  1st  of  March  next.  Meanwhile 
the  provisional  Government  of  General  Iglesias  bas  applied  for  recog- 
nition to  the  principal  powers  of  America  and  Europe.  When  the  will 
of  the  Peruvian  people  shall  be  manifested,  I  shall  not  hesitate  to  rec- 
ognize the  Government  approved  by  them." 
President  Arthur,  Third  Annual  Message,  1883. 

The  Department  of  State  will  not  recognize  a  revolutionary  Gov- 
ernment claiming  to  represent  the  people  in  a  South  American  State 
until  it  is  established  by  a  free  expression  of  the  will  of  that  people. 

Mr.  Freliughuysen,   Sec.  of  State,  to  Mr.  Logan,  Mar.  17,   1884.     MSS.  Inst. 
Chili. 

The  United  States  recognize  foreign  Governments  as  existing  de 
facto,  without  respect  to  their  forms. 

7  Op.,  582,  Gushing,  1855.     See  supra,  $7. 

Sir  W.  Harcourt,  in  "  Historicus,"  28,  quotes,  as  sustaining  his  posi- 
tion that  there  should  be  no  recognition  while  a  civil  war  is  still  depend- 
ing, the  following  from  ;Mr.  Wheaton  (vol.  1,  p.  92:)  ''Until  the  revolu- 
tion is  consummated,  and  while  the  civil  war  involving  a  contest  for  the 

550 


CHAP.  III.]       RECOGNITION  DETERMINABLE  BY  EXECUTIVE.         [§  71. 

Governineut  coutinues,  other  states  may  remain  indifferent  si)ectators 
of  the  controversy,  still  eontinuinjj;  to  treat  the  ancient  Goverinnent  as 
sovereign,  and  the  Government  de  facto  as  a  society  entitled  to  the  rights 
of  war  against  its  enemy  ;  or  may  espouse  the  cause  of  the  ])arty  which 
they  believe  to  have  justice  on  its  side.  In  the  first  case,  the  foreign 
state  fuKiilsallitsobiigationsunderthelawof  nations;  and  neither  party 
has  arighttocomplain,})rovided  itmaintaiusan  impartialneutrality.  In 
the  latter  it  becomes,  of  course,  the  enemy  of  the  party  against  whom 
it  declares  itself,  and  the  ally  of  the  other;  and  as  the  ])ositive  law  of 
nations  makes  no  distinction  in  this  respect  between  a  just  and  unjust 
war,  the  intervening  state  becomes  entitled  to  all  the  rights  of  war 
against  the  opposite  party."  This  passage  Sir  W.  Harcourt  accepts, 
saying  that,  in  the  view  of  Mr.  Wheaton,  "the  question  of  recognition 
is  clearly  one  of  law,  and  not  of  policy  only."  lie  proceeds,  however,  to 
admit  that  this  position  of  Mr.  Wheaton  (;annot  easily  be  reconciled 
with  a  passage  from  the  same  author  a  few  pages  farther  on,  in  which 
passage  there  "is  a  looseness  of  statement  which  is  somewhat  unsatis- 
factory. It  a])pears,  however,  that  in  IMr.  Wheaton's  opinion,  tlie  part 
of  'an  impartial  neutrality'  is  to  abide  the  event  of  the  contest,  and 
this  is  the  only  contest  which,  Mr.  AVheaton  says,  'neither  party  has  a 
right  to  complain  of.'  He  places  the  'acknowledgment  of  indepen- 
dence,' and  the  'joining  in  alliance,'  with  one  of  the  belligerents,  in 
another  category,  and  treats  them  both  as  a  question  of  ])olitics  rather 
than  of  law.  But,  as  'joining  in  alliance'  would  certainly  be  a  ground 
of  war,  perhaps  he  means  that  'the  acknowledgment  of  independence,' 
without  'abiding  the  event  of  thi*  contest,'  would  be  in  itself  an  act  of 
hostile  intervention,  and,  consequently,  belong  rather  to  the  province 
of  politics  than  of  law." 

VII.  SUCH  BECOGNITION  DETERMINABLE  BY  EXECUTIVE. 

§71. 

The  question  of  recognition  of  foreign  revolutionary  or  reactionary 
Governments  is  one  exclusively  for  the  Executive,  and  cannot  be  deter- 
mined internationally  by  Congressional  action. 

.     Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  Apr.  7,  l!-:64.     MSS.  Inst.,  France. 

Whether  a  revolted  colony  is  to  be  treated  as  a  sovereign  state  is  a 
political  question  to  be  decidell  by  governments,  not  by  courts  of  justice ; 
and  the  courts  of  the  United  States  must  consider  the  ancient  state  of 
things  remaining,  until  the  sovereignty  of  the  revolting  colony  is  ac- 
knowledged by  the  Government  of  the  United  States. 

Rose  V.  Hiruely,  4  Crancb,  241 ;  Kenuett  v.  Chambers,  14  Howard,  38 ;  Gelston 
r.  Hoyt,  3  Wheat.,  324. 

The  course  of  the  United  States  with  reference  to  a  revolted  portion 
of  a  foreign  nation  is  regulated  and  directed  by  the  legislative  and  execu- 
tive departments  of  the  Government,  and  not  by  the  judicial  department. 
If  the  Government  remains  neutral,  and  recognizes  the  existence  of  a 
civil  war,  the  courts  cannot  consider  as  criminal  those  acts  of  hostility 
which  war  authorizes,  and  which  the  new  Government  may  direct  against 
its  enemy.     The  persons  or  vessels  employed  in  tiie  service  of  a  terri- 

.     551 


§  71.]  INTERVENTION.  [CHAP.  III. 

tory  whose  belligerency  has  been  recognized  by  this  Government  must 
be  permitted  to  prove  the  fact  of  their  being  so  employed  by  the  same 
testimony  as  would  be  sufficient  to  prove  that  such  i^erson  or  vessel  was 
employed  in  the  service  of  an  acknowledged  state.  The  seal  of  such 
unacknowledged  Goverament  cannot  be  permitted  to  prove  itself,  but 
may  bo  proved  by  such  testimony  as  the  nature  of  the  case  admits;  and 
the  fact  that  a  person  or  vessel  is  in  the  service  of  such  Government 
may  be  proved  without  proving  the  seal. 

U.  S.  V.  Palmer,  3  Wheat.,  GIO.  See  the  Estrella,  4  Wheat.,  298.  As  to  piracy 
in  such  cases,  see  infra,  $  361. 

The  Government  of  the  United  States  having  recognized  the  exist- 
ence of  civil  war  between  Spain  and  her  colonies,  the  courts  of  the 
Union  are  bound  to  consider  as  lawful  those  acts  which  war  authorizes, 
and  which  the  new  Governments  in  South  America  may  direct  against 
their  enemy.  Captures  made  under  their  commissions  are  to  be  treated 
by  the  courts  as  other  captures,  and  their  legality  canuot  be  determined 
unless  they  were  made  in  violation  of  the  neutral  rights  of  the  United 
States. 

Divina  Pastora,  4  Wheat.,  .52. 

There  existing  between  Spaiu  and  her  revolted  colony — theEepublic 
of  Venezuela — an  open  war,  in  which  the  Government  of  the  United 
States  maintains  strict  neutrality,  the  courts  cannot  interfere  with  a 
capture  made  by  a  cruiser  sailing  under  a  commission  from  the  revolt- 
ing belligerent. 

The  Josefa  Segnnda,  5  Wheat.,  338. 

The  United  States  not  having  acknowledged  the  existence  of  any 
Mexican  Kepublic  or  State  at  war  with  Spain,  the  Supreme  Court  does 
not  recognize  the  existence  at  Galveston  of  any  lawful  court  of  prize. 
The  Nueva  Anna,  6  Wheat.,  193. 

In  political  matters  the  courts  follow  the  department  of  the  Govern- 
ment to  wliich  those  matters  may  be  committed,  and  will  not  recognize 
the  existence  of  a  new  Government  until  it  has  been  recognized  by 
the  Executive. 

U.  S.  V.  Pico,  23  Howard,  326;  The  Prize  Cases,  2  Black,  63.');  U.S.  r.  Yorba,  1 
Wall.,  412;  U.  S.  ?'.  Hutchiufrg,  2  Wheel.,  C.  C,  .543;  The  Hornet,  2  Abbott, 
U.  S.,  35 ;  U.  S.  V.  Baker,  5  Blatch.,  6;  1  Bruuner,  C.  C,  489. 

The  judiciary  follows  the  Executive  on  the  question  of  recognition  of 
belligerent  rights. 

U.  S.v.  Palmer,  3  Wheat.,  610;  The  Nueva  Anna,  6  Wheat.,  193. 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine^  against  insur- 
gents, its  actual  existence  is  a  fact  in  our  domestic  history  which  the 
courts  are  bound  to  recognize.     As,  in  the  case  of  an  insurrection,  the 
President  must,  in  the  absence  of  Congressional  action,  determine  what 
552 


CHAP.  III.]  "accretion,  NOT    COLONIZATION."  [§  72. 

degree  of  force  the  crisis  demands,  aud  as  in  political  matters  the 
courts  must  be  governed  l)^^  the  decisions  and  acts  of  the  jjolitical  de- 
partment to  which  this  power  is  intrusted,  the  i)rochimation  of  l)h)ckade 
by  the  President  is  of  itself  conclusive  evidence  that  a  state  of  war 
existed  which  demanded  and  authorized  recourse  to  such  a  measure. 
The  Prize  Cases,  2  Black,  035. 

Courts  having  an  international  jurisdiction  may  take  notice  of  exist- 
ing sovereignties  from  the  fact  of  their  continuous  existence  as  such, 
and  their  recognition  as  such  in  history. 

Consul  of  Spain  v.  the  Couceptiou,  2  Wheel.,  Cr.  Ca8.,r)97  ;  1  Brnnnor,  Col.  Cas. 

597  ;  S.  P.,  the  Maria  Josopba,  2  Wheel.,  Cr.  Caa.  (iOO  ;  1  Brunnta-,  Col.  Cas. 

500.     Compare  Williams  v.  Suffolk  Ins.  Co.,  13  Pet.,  415  ;  afiiriuinj;  '.}  Suimi., 

270. 
As  to  non-reception  by  President  of  foreign  political  malcontents,  see  infra,  ^  91. 

The  action  of  President  Taylor,  through  Mr.  Clayton,  Secretary  of 
State,  in  sending,  in  June,  1849,  Mr.  A.  D.  ^Vlann  as  a  special  agent  to 
investigate  the  condition  of  the  Hungarian  insurrection,  is  elsewhere 
considered.  {Supra,  §  47.)  In  Mr.  Mann's  instructions,  June  18,  1849, 
is  the  following: 

''  Should  the  new  Government  prove  to  be,  in  your  opinion,  firm  and 
stable,  the  President  will  cheerfully  recommend  to  Congress,  at  their 
next  session,  the  recognition  of  IJungary,  and  you  might  intimate,  if 
you  should  see  fit,  that  the  President  would  in  that  event  be  gratified 
to  receive  a  diplomatic  agent  from  Hungary  in  the  United  States  by  or 
before  the  next  meeting  of  Congress,  and  that  he  entertains  no  doubt 
whatever  that  in  case  her  new  Government  should  prove  to  be  firm  and 
stable,  her  independence  would  be  speedily  recognized  by  that  enlight- 
ened body." 

As  to  this  it  is  to  be  remarked  that  while  Mr.  Webster,  who  shortly 
afterwards,  on  the  death  of  President  Taylor,  became  Secretary  of 
State,  sustained  the  sending  of  Mr.  Mann  as  an  agent  of  inciniry,  he 
was  silent  as  to  this  i^aragraph,  and  suggests,  at  the  utmost,  only  a 
probable  Congressional  recognition  in  case  the  new  Government  should 
prove  to  be  firm  and  stable.  In  making  Congress  tbe  arbiter.  President 
Taylor  followed  the  precedent  of  President  Jackson,  who,  on  j\Iarch  3, 
1837,  signed  a  resolution  of  Congress  for  the  recognition  of  the  independ- 
ence of  Texas.  The  recognition,  however,  by  tlie  United  States,  of  the 
independence  of  Belgium,  of  the  powers  who  threw  off  Nai)oleon\s  yoke, 
and  of  the  South  American  states  who  have  from  time  to  time  declared 
themselves  independent  of  ])rior  Governments,  has  been  ]nimarily  by 
the  Executive,  and  such  also  has  been  the  case  in  respe(it  to  the  recog- 
nition of  the  successive  revolutionary  Governments  of  France. 

VIII.  ACCRETION,  NOT   COLONIZATION,   THE    POLICY  OF   THE    UNITED 

STATES. 

§72. 

The  possession  by  Spain  of  the  mouth  of  the  Mississippi  might  have 
been  tolerated  by  the  United  States  from  the  fact  that  she  was  already  in 
possession,  and  that  her  power  was  not  such  as  to  make  her  control  of 

563 


§  72.]  INTERVENTION.  [CHAP.  III. 

that  territory,  though  uiiiioying  and  disadvantageous,  necessarily  a 
peril  to  the  United  States  ;  but  if  France  should  have  taken  possession 
under  treaty  from  Spain,  "  the  worst  eflects  are  to  be  apprehended," 
and  the  United  States  would  take  the  most  vigorous  measures,  even 
though  they  should  involve  war,  to  avert  such  a  calamity, 

Mr.  Madisou,  Sec.  of  State,  to  Mr.  Livingston,  May  1,  1802.  MSS.  Inst.,  Min- 
isters. To  same  effect,  see  Mr.  Madison  to  Mr.  C.  Plucliney,  May  11,  1802; 
Mr.  Madison  to  Messrs.  Livingston  and  Monroe,  Mar.  2, 180lj,  ibid.  See  also 
infra,  ^^S  148,  154;  supra,  §  58. 

"  The  cession  of  Louisiana  and  the  Moridasby  Spain  to  France  works 
most  sorely  on  the  United  States.  On  this  subject  the  Secretary  of 
State  has  written  to  you  fully  ;  yet  I  cannot  forbear  recurring  to  it  per- 
sonally, so  deep  is  the  impression  it  makes  on  my  mind.  It  completely 
reverses  all  the  political  relations  of  the  United  States,  and  will  form  a 
new  epoch  in  our  poHtical  course.  Of  all  nations  of  any  consideration, 
France  is  the  one  which,  hitherto,  has  offered  the  fewest  points  on  which 
we  could  have  any  conflict  of  right,  and  the  most  points  of  a  communion 
of  interests.  From  these  causes  we  have  ever  looked  to  her  as  our 
natural  friend.,  as  one  with  which  we  never  could  have  an  occasion  of  dif- 
ference Her  growth,  therefore,  we  viewed  as  our  own,  her  misfortunes 
onis.  There  is  on  the  globe  one  single  spot,  the  possessor  of  which  is  our 
natural  and  habitual  enemy.  It  is  New  Orleans,  through  which  the 
produce  of  three-eighths  of  our  territory  must  pass  to  market,  and  from 
its  fertility  it  will  ere  long  yield  more  than  half  of  our  whole  produce, 
and  contain  more  than  half  of  our  inhabitants.  France,  placing  herself 
in  that  door,  assumes  to  us  the  attitude  of  defiance.  Si)ain  might  have 
retained  it  quietly  for  years.  Her  pacific  dispositions,  her  feeble  state, 
would  induce  her  to  increase  our  facilities  there  so  that  her  possession 
of  the  place  would  hardly  be  felt  by  us,  and  it  would  not,  perhaps,  be 
very  long  before  some  circumstance  might  arise  which  might  make  the 
cession  of  it  to  us  the  price  of  something  of  more  worth  to  her.  Not  so 
can  it  ever  be  in  the  hands  of  France;  the  impetuosity  of  her  temper, 
the  energy  and  restlessness  of  her  character,  placed  in  a  point  of  eternal 
friction  with  us  and  our  character,  which,  though  quiet  and  loving  peace 
and  the  pursuit  of  wealth,  is  high-minded,  despising  wealth  in  compe- 
tition with  insult  or  injury,  enterprising,  and  energetic  as  any  nation 
on  earth.  These  circumstances  render  it  impossible  that  France  and 
the  United  States  can  continue  long  friends  when  they  meet  in  so 
irritable  a  position.  They,  as  well  as  we,  must  be  blind  if  they  do  not 
see  this,  and  we  must  be  very  improvident  if  we  do  not  begin  to  make 
arrangements  on  that  hypothesis.  The  day  that  France  takes  posses- 
sion of  New  Orleans  fixes  the  sentence  which  is  to  retain  her  forever 
within  her  low-water  mark.  It  seals  the  union  of  two  nations  who,  in 
conjunction,  can  maintain  exclusive  possession  of  the  ocean.  From 
that  moment  we  must  marry  ourselves  to  the  British  fleet  and  nation. 
We  must  turn  all  our  attention  to  a  maritime  force,  for  which  our  re- 
souvces  place  us  on  very  high  ground,  and  having  formed  and  connected 
together  a  power  which  may  render  re-enforcement  of  her  settlements 
here  impossible  to  France,  make  the  first  cannon  which  shall  be  fired 
in  Europe  the  signal  for  the  tearing  up  any  settlement  she  may  have 
made,  and  for  holding  the  two  continents  of  America  in  sequestration 
for  the  common  purposes  of  the  united  British  and  American  nations. 

554 


CHAP.  III.]  "ACCRETION,  NOT    COLONIZATION."  [§  72. 

This  is  not  a  state  of  things  we  seek  or  desire,  ll  is  one  which  this 
measure,  if  adopted  by  France,  forces  on  us  as  necessarily  as  any  other 
cause,  by  the  laws  of  nature,  brings  on  its  necessary  effect.  It  is  not 
from  a  fear  of  France  that  we  deprecate  this  measure  proposed  by  her. 
for,  however  greater  her  force  is  than  ours,  compared  in  the  abstract, 
it  is  nothing  in  comparison  to  ours  when  to  be  exerted  on  our  soil,  but 
it  is  from  a  sincere  love  of  i)eace,  and  a  firm  persuasion  that,  bound  to 
France  by  the  interests  and  strong  sympathies  still  existing  in  the 
minds  of  our  citizens,  and  hokling  relative  positions  which  insure  their 
continuance,  we  are  secure  of  a  long  course  of  peace,  whereas  the  change 
of  friends,  which  will  be  rendered  necessary  if  France  chanj^es  that  posi- 
tion, embarks  us  necessarily  as  a  belligerent  power  in  the  first  war  of 
Europe.  In  that  case  France  will  have  held  i)ossession  of  New  Orleans 
during  the  interval  of  a  peace,  long  or  short,  at  the  end  of  which  it  will 
be  wrested  from  her.  Will  this  shortlived  i)Ossession  have  been  an 
equivalent  to  her  for  the  transfer  of  such  a  weight  into  the  scale  of  her 
enemy?  Will  not  the  amalgamation  of  a  young,  thriving  nation  con- 
tinue to  that  enemy  the  health  and  force  which  are  now  so  evidently  on 
the  decline?  And  will  a  few  years'  possession  of  New  Orleans  add 
equally  to  the  strength  of  France?  She  may  say  she  needs  Louisiana 
for  the  supply  of  her  West  Indies.  She  does  not  need  it  in  time  of 
peace,  and  in  war  she  could  not  depend  on  them,  because  they  would 
be  so  easily  intercepted.  I  should  suppose  that  all  these  considerations 
might  in  some  i)ro[)er  form  be  brought  into  view  of  the  (Tovernment  of 
France.  Though  stated  by  us,  it  ought  not  to  give  offense,  because  we 
do  not  bring  them  forward  as  a  menace,  but  as  consequences  not  con- 
trollable by  us,  but  inevitable  from  the  course  of  things.  We  mention 
them  not  as  things  w^hich  we  desire  by  any  means,  but  as  things  we 
deprecate,  and  we  beseech  a  friend  to  look  lorward,  and  to  prevent 
them  for  our  common  interest." 

President  Jefferson  to  Mr.  Livingston,  Apr.  18,  1802.     4  Jeff.  Works,  pp.  431- 
4:53 ;  3  Randall's  Jefferson,  6. 

"As  the  question  may  arise,  how  far  in  a  state  of  war  one  of  the  par- 
ties can  of  right  convey  territory  to  a  neutral  power,  and  thereby  deprive 
its  enemy  of  the  chance  of  conquest  incident  to  war,  especially  when  the 
conquest  may  have  been  actually  projected,  it  is  thought  proper  to 
observe  to  you,  first,  that  in  the  present  case  the  project  of  peaceable 
acquisition  by  the  United  States  originated  prior  to  the  war,  and  con- 
sequently before  a  project  of  conquest  could  have  existed;  secondly, 
that  the  right  of  a  neutral  to  procure  for  itself  by  a  bona  fide  transac- 
tion property  of  any  sort  from  a  belligerent  i)ower  ought  not  to  be  frus- 
trated by  the  chance  that  a  rightful  conquest  thereof  might  thereby  be 
precluded.  A  contrary  doctrine  would  sacrifice  the  just  interests  of 
peace  to  the  unreasonable  pretensions  of  war,  and  the  positive  rights  of 
one  nation  to  the  rights  of  another.  A  restraint  on  the  alienation  of 
territory  from  a  nation  at  war  to  a  nation  at  peace  is  imposed  only  in 
cases  where  the  proceeding  might  have  a  collusive  reference  to  the 
existence  of  the  war,  and  might  be  calculated  to  save  the  proi)erty 
from  danger,  by  placing  it  in  secret  trust,  to  be  reconveyed  on  the 

555 


§  72.]  INTERVENTION.  [CHAP.  III. 

return  of  i)eace.  No  objection  of  this  sort  can  be  made  to  the  acquisi- 
tions we  have  in  view.  The  measures  taken  on  this  subject  were  taken 
before  the  existence  or  the  appearance  of  war,  and  they  will  be  pursued 
as  they  were  planned,  with  the  hona  fide  purpose  of  vesting  the  acquisi- 
tion forever  in  the  United  States." 

Mr.  MadisoD,  Sec.  of  State,  to  Messrs.  Livingston  and  Monroe,  May  28,  180.3. 
MSS.  lust.,  Ministers. 

"Congress  witnessed,  at  their  last  session,  the  extraordinary  agita- 
tion ])roduced  in  the  public  mind  by  the  suspension  of  our  right  of 
deposit  at  the  port  of  New  Orleans,  no  assignment  of  another  place 
having  been  made  according  to  treaty.  They  were  sensible  that  the 
continuance  of  that  privation  would  be  more  injurious  to  our  nation 
than  any  consequences  which  could  flow  from  any  mode  of  redress,  but 
reposing  just  confidence  in  the  good  faith  of  the  Government  whose 
officer  had  committed  the  wrong,  friendly  and  reasonable  representa- 
tions were  resorted  to,  and  the  right  of  deposit  was  restored. 

"Previous,  however,  to  this  period  we  had  not  been  unaware  of  the 
danger  to  which  our  peace  would  be  perpetually  exposed  while  so 
im])ortant  a  'kay  to  the  commerce  of  the  Western  country  remained 
under  foreign  power.  Difficulties,  too,  were  presenting  themselves  as 
to  the  navigation  of  other  streams,  which,  arising  within  our  territo- 
ries, pass  through  those  adjacent.  Propositions  had,  therefore,  been 
authorized  for  obtaining  on  fair  conditions  the  sovereignty  of  New 
Orleans,  and  of  other  possessions  in  that  quarter  interesting  to  our 
quiet,  to  such  extent  as  was  deemed  practicable;  and  the  provisional 
appropriation  of  two  millions  of  dollars,  to  be  applied  and  accounted 
for  by  the  President  of  the  United  States,  intended  as  part  of  the  price, 
was  considered  as  conveying  the  sanction  of  Congress  to  the  acquisition 
proposed.  The  enlightened  Government  of  France  saw,  with  just  dis- 
cernment, the  importance  to  both  nations  of  such  liberal  arrangements 
as  might  best  and  permanently  promote  the  peace,  friendship,  and 
interests  of  both;  and  the  property  and  sovereignty  of  all  Louisiana, 
which  had  been  restored  to  them,  have  on  certain  conditions  been 
transferred  to  the  United  States  by  instruments  bearing  date  the  30th 
of  April  last.  When  these  shall  have  received  the  constitutional  sanc- 
tion of  the  Senate,  they  will  without  delay  be  communicated  to  the 
Ee]»resentatives  also  for  the  exercise  of  their  functions  as  to  those  con- 
ditions which  are  within  the  powers  vested  by  the  Constitution  in  Con- 
gress. While  the  property  and  sovereignty  of  the  Mississippi  and  its 
waters  secure  an  independent  outlet  for  the  produce  of  the  Western 
States,  and  an  uncontrolled  navigation  through  their  whole  course, 
free  from  collision  with  other  powers  and  the  dangers  to  our  peace  from 
that  source,  the  fertility  of  that  country,  its  climate  and  extent,  promise 
in  due  season  important  aids  to  our  Treasury,  an  ample  provision  for 
556 


CHAP.  III.]  "ACCRETION,  NOT    COLONIZATION."  [§  72. 

our  posterity  and  a  wide-spread  field  for  the  blessings  of  freedom  and 
equal  laws;" 

President  Jefferson,  Tliinl  Anmial  Message  1803.  See  infra,  (i  148,  as  to  treaty  of 
purchase.  Tbtit  tbo  purohaso  of  Louisiana  was  approved  by  John  Adams, 
see  9  John  Adams's  Works,  631,  032. 

"  It  will  1)6  objected  to  our  receiving  Cuba  that  no  limit  can  then  be 
drawn  to  our  future  acquisitions.  Cuba  can  be  defeiuletl  by  us  without 
a  navy,  and  this  develops  the  principle  which  ought  to  limit  our  views. 
Nothing  should  ever  be  accepted  which  would  require  a  navy  to  defend 
it." 

Mr.  Jefferson  to  President  Madison,  Apr.  27,  1809.    5  Jeff.  Works,  443. 
The  negotiations,  under  Mr.  Monroe's  Presidency,  for  the  purchase  of  Florida, 
are  noticed  infra,  §  IGl.     The  argument  chiefly  pressed  by  Mr.  J.  Q.  Adams, 
Sec.  of  State,  when  advocating  the  treaty,  was  that  of  contiguity. 

In  December,  1822,  the  Government  of  St.  Salvador  proposed  its 
annexation  to  the  United  States,  the  object  being  alleged  to  be  the 
escape  from  forced  annexation  to  Mexico  under  Yturbide.  The  ofier, 
on  the  overthrow  of  the  Government  of  Yturbide,  was  withdrawn. 

Mr.  Clay.  Sec.  of  State,  to  Mr.  Williams,  Feb.  10,  192G.     MSS.  Inst.,  Ministers. 
For  offer  by  President  Jacksou  to  purchase  from  Mexico  the  Bay  of  San  Fran- 
cisco and  the  adjacent  shore  for  half  a  million  of  dollars,  and  for  further 
offer  as  to  x>urchasing  Texas,  see  Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Butler, 
Aug.  (i,  Nov,  9,  1835.    MSS.  Inst.,  Mex. 
President  Van  Bureu's  message  of  Oct.  3,  1837,  with  correspondence  relative  to 
proposed  annexation  of  Texas,  is  in  House  Ex.  Doc.  No.  40,  25th  Cong., 
Ist  sess. 
As  to  recognition  and  annexation  of  Texas,  see  supra,  $  70. 
As  to  assumjitiou  of  incumbrances  of  Texas,  see  supra,  §  5. 
lu  the  Br.  and  For.  St.  Pap.  for  1841-'42,  vol.  30,  are  given  a  series  of  documents 
relating  to  the  annexation  of  Texas.     In  the  same  work  for  1842-'43,  vol.  31,  are  the 
following : 

Mr.  Waddy  Thompson  (Mexico)  to  Mr.  Webster  (Sec),  July  30,  1842,  inclosing 
circular  of  Mexican  minister  of  foreign  relations  to  diplomatic  corps  as 
to  alleged  violation  of  neutrality  by  the  United  States,  July  6,  1842. 
Mr.  Thompson  to  Mr.  Webster,  Sept.  10,  1842. 
Mr.  Bocanegra  to  Mr.  Thompson,  Sept.  10,  1842. 
In  the  same  work  for  1844-'45,  vol.  33,  are  the  following  : 

Lord  Aberdeen,  secretary  of  foreign  affairs,  to  Mr.  Pakenham,  British  minister 
at  Washington,  Dec.  26,  1843,  stating  that  while  Great  Britain  had  ac- 
knowledged the  independence  of  Texas,  she  did  not  desire  to  establish 
dominant  influence  in  that  state,  or  to  use  any  undue  pressure  there  for  the 
abolition  of  slavery. 
Messrs.  Van  Zandt  and  Henderson,  envoys  from  Texas,  to  Mr.  Calhoun,  Apr. 

15,  1844,  stating  financial  condition  of  Texas. 
Mr.  Buchanan  (Sec.)  in  reply  to  Gen,  Almonte,  Mar.  10,  1845. 
The  envoy  of  France  to  the  President  of  Texas,  May  30,  1845,  as  to  terms  of 

recognition  of  independence  of  Texas  by  Mexico. 
Acceptance  of  such  recognition  by  Texas,  May  10,  1845. 
Armistice  proclaimed  by  President  of  Texas,  June  15,  1845. 

557 


5  72.]  INTERVENTION.  [CHAP.  III. 

Message  of  President  of  the  TJuited  Staten  to  Senate,   suljmitting  treatj'  of 

annexation,  Apr.  22,  1844. 
Message  of  President  to  House  of  Representatives,  June  10,  1844,  announcing 

rejection  of  treaty  by  Senate  and  suggesting  legislation. 
Joint  resolution  of  annexation.  Mar.  1,  1845. 
Proclamation  of  President  of  Texas,  Apr.  15,  1845,  calling  for  legislation  on 

such  annexation. 
Ordinance  of  Texas  of  July  4,  1845,  accepting  annexation. 
Constitution  of  the  State  of  Texas,  Aug.  27,  1845. 

In  Lesur's  Annuaire  for  1832,  app.  82,  114,  are  given  many  important  papers 
relative  to  the  annexation  of  Texas.  On  the  same  subject  may  bo  con- 
sulted 2  Lawrence  Com.  sur  droit  int.,  332,^. 

"By  the  treaty  of  the  22d  of  February,  1819,  between  the  United 
States  and  Spain,  the  Sabine  was  adojjted  as  the  line  of  boundary 
between  the  two  powers.  Up  to  that  period  no  considerable  coloniza- 
tion had  been  effected  in  Texas ;  but  the  territory  between  the  Sabine 
and  the  Eio  Giande  being  confirmed  to  Spain  by  the  treaty,  applications 
were  made  to  that  power  for  grants  of  land,  and  such  grants,  or  per- 
missions of  settlement,  were,  in  fict,  made  by  the  Spanish  authorities 
in  favor  of  citizens  of  the  United  States  proposing  to  emigrate  to  Texas 
in  numerous  families,  before  the  declaration  of  independence  by  Mexico. 
And  these  early  grants  were  confirmed,  as  is  well  known,  by  successive 
acts  of  the  Mexican  Government,  after  its  separation  from  Spain.  In 
January,  1823,  a  national  colonization  law  was  passed,  holdiug  out 
strong  inducements  to  all  persons  who  should  incline  to  undertake  the  set- 
tlement of  uncultivated  lands  ;  and  although  the  Mexican  law  prohibited 
for  a  time  citizens  of  foreign  countries  from  settling,  as  colonists,  in  ter- 
ritories immediately  joining  such  foreign  countries,  yet  even  this  restric- 
tion "was  afterwards  repealed  or  suspended,  so  that,  in  fact,  Mexico,  from 
the  commencement  of  her  political  existence,  held  out  the  most  liberal 
inducements  to  immigrants  into  her  territories,  with  full  knowledge  that 
these  inducements  were  likely  to  act,  and  expecting  they  would  act,  with 
the  greatest  effect  upon  citizens  of  the  United  States,  especially'  of  the 
Southern  States,  whose  agricultural  pursuits  naturally  rendered  the  rich 
lands  of  Texas,  so  well  suited  to  their  accustomed  occupation,  objects 
of  desire  to  them.  The  early  colonists  of  the  United  States,  introduced 
by  Moses  and  Stephen  Austin  under  these  inducements  and  invitations, 
were  persons  of  most  respectable  character,  and  their  undertaking  was 
attended  with  very  severe  hardships,  occasioned  in  no  small  degree  by 
the  successive  changes  in  the  Government  of  Mexico.  They  neverthe- 
less persevered  and  accomplished  a  settlement.  And,  under  the  en- 
couragements and  allurements  thus  held  out  by  Mexico,  other  emigrants 
followed,  and  many  thousand  colonists  from  the  United  States  and  else- 
where had  settled  in  Texas  within  ten  years  from  the  date  of  Mexican 
independence.  Having  some  reasons  to  comi)lain,  as  they  thought,  of 
the  Government  over  them,  and  especially  of  the  aggressions  of  the 
558 


CHAP.  III.]  "ACCRKTIOX,  NOT    COLONIZATION."  [§  72. 

Mexican  military  stationed  in  Texas,  they  sought  relief  by  applying  to 
the  supreme  Government  for  the  separation  of  Texas  from  Coahuila,  and 
for  a  local  government  for  Texas  itself.  Not  having  succeeded  in  this 
object,  in  the  process  of  time,  and  in  the  progress  of  events,  they  saw 
fit  to  attempt  an  entire  separation  from  Mexico,  to  set  up  a  Government 
of  their  own,  and  to  establish  a  political  sovereignty.  War  ensued ; 
and  the  battle  of  San  Jacinto,  fought  on  the  21st  of  Ayiril,  1S3G,  achieved 
their  independence.  The  war  was  from  that  time  at  an  end,  and  in 
March  following  the  independence  of  Texas  was  formally  acknowledged 
by  the  Government  of  the  United  States." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Thompson,  July  8,  1842.     MSS.   List.,  Mex. 

f)  Webster's  Works,  448. 
See,  fnrtber,  as  to  reco<;nition  and  annexation  of  Texas,  supra,  ^^  5,70. 

In  a  speech  on  the  Oregon  bill,  delivered  in  the  Senate,  on  January 
24,  1843,  Mr.  Ualhoun  said: 

"  Time  is  acting  for  us ;  and  if  we  shall  have  the  wisdom  to  trust  its 
operation,  it  will  assert  and  maintain  our  right  with  resistless  force, 
without  costing  a  cent  of  money  or  a  drop  of  blood.  There  is  often,  in 
the  afiairs  of  Government,  more  efficiency  and  wisdom  in  non-action 
than  in  action.  All  we  want  to  effect  our  object  in  this  case  is  'a  wise 
and  masterly  inactivity.'  Our  population  is  rolling  towards  the  shores 
of  the  Pacilic  with  an  impetus  greater  than  what  we  realize.  It  is  one 
of  those  forward  movements  which  leaves  anticipation  behind.  In  the 
period  of  thirty-two  years  which  have  elapsed  since  I  took  my  seat  in 
the  other  house,  the  Indian  frontier  has  receded  a  thousand  miles  to  the 
west.  Atthattime  ouri)opulation  was  much  less  than  half  what  itis  now. 
It  was  then  increasing  at  the  rate  of  about  a  quarter  of  a  million  annually ; 
it  is  now  not  less  than  six  hundred  thousand;  and  still  increasing  at  the 
rate  of  something  more  than  3  percent,  compound  annually.  AttJjatrate 
it  will  soon  reach  thej^early  increase  of  a  million.  If  to  this  be  added  that 
the  region  west  of  Arkansas  and  the  State  of  Missouri,  and  south  of  the 
Missouri  River,  is  occupied  by  half-civilized  tribes,  who  have  their  lands 
secured  to  them  by  treaty  (and  which  will  prevent  the  spread  of  i)0])ula- 
tion  in  that  direction),  and  that  this  great  and  increasing  tide  will  be 
forced  to  takethocomparativelynarrowchannel  tothenorth  of  thatriver 
and  south  of  our  northern  boundary,  some  conception  may  be  formed  of 
the  strength  with  which  the  current  will  run  in  that  direction  and  how 
soon  it  will  reach  the  eastern  gorges  of  the  Eocky  Mountains.  I  say  some 
conception,  for  I  feel  assured  that  the  reality  will  outrun  tlie  anticipa- 
tion. In  illustration,  I  will  repeat  what  I  stated  when  I  hrst  addressed 
the  Senate  on  this  subject.  As  wise  and  experienced  as  was  President 
Monroe,  as  much  as  he  had  witnessed  of  the  growth  of  our  country  in 
his  time,  so  inadequate  was  his  conception  of  its  rapidity,  that  near  the 
close  of  his  administration— in  the  year  1824 — he  jn-oposed  to  colonize 
the  Indians  of  New  York  and  those  north  of  the  Ohio  Kiver  and  east 
of  the  Mississippi,  in  what  is  now  called  the  Wisconsin  Territory,  under 
the  impression  that  it  was  a  portion  of  our  territory  so  remote  that  they 
would  not  be  disturbed  by  our  increasing  poi)ulation  for  a  long  time  to 
come.  It  is  now  but  eighteen  years  since,  and  already,  in  that  short 
period,  it  is  a  great  and  flourishing  territory  ready  to  knock  at  our  door 
for  admission  as  one  of  the  sovereign  members  of  the  Union.  But  what 
is  still  more  striking,  what  is  really  wonderful  and  almost  miraculous  is, 
that  another  territory  (Iowa),  still  farther  west  (beyond  <the  Mississippi), 

559 


§  72.]  INTERVENTION.  [CHAP.  III. 

has  sprung  up  as  if  by  magic,  and  has  already  outstripped  Wisconsin, 
and  may  knock  for  entrance  before  she  is  prepared  to  do  so.  Such  is 
the  wonderful  growth  of  a  population  which  has  attained  the  number 
ours  has — yearly  increasing  at  a  compound  rate — and  such  the  impetus 
with  which  it  is  forcing  its  way,  resistlessly,  westward.  It  will  soon, 
far  sooner  than  anticipated,  reach  the  Rocky  Mountains,  and  be  ready 
to  pour  into  the  Oregon  Territory,  when  it  will  come  into  our  possession 
without  resistance  or  struggle;  or,  if  there  should  be  resistance,  it 
woukl  be  feeble  and  ineffectual.  We  should  then  be  as  much  stronger 
there,  comparatively,  than  Great  Britain,  as  she  is  now  stronger  than 
we  are ;  and  it  would  then  be  as  idle  for  her  to  attempt  to  assert  and 
maintain  lier  exclusive  claim  to  the  territory  against  us,  as  it  would  now 
be  in  ns  to  attempt  it  against  her.  Let  us  be  wise  and  abide  our  time; 
and  it  will  accomplish  all  that  we  desire  with  more  certainty  and  with 
infinitely  less  sacrifice  than  we  can  without  it." 
4  Calhoun's  Works,  245  #. 

The  independence  of  Mexico  having  been  acknowledged  in  1843,  not 
only  by  the  United  States,  but  by  the  principal  Euroi)ean  powers,  and 
Texas  having  for  eight  years  resisted  successfully  Mexican  attempts  at 
subjugation,  the  annexation  of  Texas  by  the  United  States  cannot  be 
justly  complained  of  by  Mexico  as  an  invasion  of  international  law. 

Mr.  Upshur,  Sec.  of  State,  to  Mr.  Thompson,  Oct.  20,  1843.     MSS.  Inst.,  Mes. 
See  Mr.  Upshur  to  Mr.  Green,  Apr.  19,  1844,  Hid. 

"  It  is  our  policy  to  increase  by  growing  and  spreading  out  into  un- 
occupied regions,  assimilating  all  we  incorporate.  In  a  word,  to  increase 
by  accretion,  and  not  through  conquest  by  the  addition  of  masses  held 
together  bj'  the  cohesion  of  force.  No  system  can  be  more  unsuited  to 
the  latter  i^rocess,  or  better  adapted  to  the  former,  than  our  admirable 
Federal  system.  If  it  should  not  be  resisted  in  its  course,  it  will  proba- 
bly fulfill  its  destiny,  without  disturbing  our  neighbors  or  putting  in 
jeopardy  the  general  peace ;  but  if  it  be  op])Osed  by  foreign  interfer- 
ence, a  new  direction  would  be  given  to  our  energy,  much  less  favorable 
to  harmony  with  our  neighbors  and  to  the  general  peace  of  the  world. 
The  change  would  be  undesirable  to  us,  and  much  less  in  accord  with 
what  I  have  assumed  to  be  primary  objects  of  policy  on  the  part  of 
France,  England,  and  Mexico." 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  King,  Aug.  12,  1844.     MSS.  Inst.,  France. 

"  No  measure  of  policy  has  been  more  steadily  or  longer  pursued,  and 
that  by  both  of  the  great  parties  into  which  the  Union  is  divided,  [than 
the  annexation  of  Texas].  Many  believed  that  Texas  was  embraced  in 
the  cession  of  Louisiana,  and  was  improperly,  if  not  unconstitutionally, 
surrendered  by  the  treaty  of  Florida  in  1819.  Under  that  impression, 
and  the  general  conviction  of  its  importance  to  the  safety  and  welfare 
of  the  Union,  its  annexation  has  been  an  object  of  constant  pursuit 
ever  since.  It  was  twice  attempted  to  acquire  it  during  the  administra- 
tion of  Mr.  Adams,  once  in  1825,  shortly  after  he  came  into  power,  and 
again  in  1827.  It  was  thrice  attempted  under  the  administration  of  his 
successor.  General  Jackson,  first  in  1829,  immediately  after  he  came 
560 


CHAP.  III. J  "accretion,  NOT    COLONIZATION."  [§  72. 

into  power,  agiiiu  iu  1833,  aud  limilly  in  1835,just  bclore  Texas  declared 
her  independence.  Texas  herself  made  a  proposition  for  annexation  in 
1837,  at  the  commencement  of  Mv.  Van  Buren's  administration,  which 
he  declined,  not,  however,  on  the  grounds  of  opposition  to  tlie  policy  of 
the  measure.  The  United  States  had  previously  acknowledged  her 
independence,  and  the  exami)le  has  since  been  followed  by  France  and 
Grt'at  Britain.  The  latter,  soon  after  her  recognition,  began  to  adopt  a 
line  of  policy  in  reference  to  Texas  which  has  given  greatly  increased 
importance  to  the  measure  of  annexation,  by  making  it  still  more  essen- 
tial to  the  safety  and  welfare  both  of  her  and  tlie  United  States." 

Mr.  Calliodii,  Sec.  of  State,  to  Mr.  Sbauiion,  Sept.  10,  1844.     MSS.  Inst.,  Mex. 

"Texas  had  declared  her  independence,  and  maintained  it  by  her 
arms  for  more  than  nine  years.  She  has  had  an  organized  Govern- 
ment in  successful  operation  during  that  period.  Her  separate  exist- 
ence as  an  independent  state  had  been  recognized  by  the  United  States 
and  the  princijial  powers  of  Europe.  Treaties  of  commerce  and  navi- 
gation had  been  concluded  with  her  by  different  nations,  and  it  had 
become  manifest  to  the  whole  world  that  any  further  attempt  on  the 
part  of  Mexico  to  conquer  her  or  overthrow  her  Government  would  be 
in  vain.  Even  Mexico  herself  had  become  satisfied  of  this  fact;  and 
while  the  question  of  annexation  was  pending  before  the  peoi)]e  of 
Texas,  during  the  past  summer,  the  Government  of  Mexico,  by  a  formal 
act,  agreed  to  recognize  the  independence  of  Texas  on  condition  that 
she  would  not  annex  herself  to  any  other  i)0wer.  The  agreen;ent  to 
acknowledge  the  independence  of  Texas,  whether  with  or  without  this 
condition,  is  conclusive  against  Mexico.  The  independence  of  Texas 
is  a  fact  conceded  by  Mexico  herself,  and  she  had  no  right  or  authority 
to  prescribe  restrictions  as  to  the  form  of  Government  which  Texas 
might  afterward  choose  to  assume." 

President  Polk,  First  Annual  Messajje,  1845. 

As  to  aasuui[)tion  of  Texas  debt  l)y  tlio  United  Slates,  see  supra,  '^  5. 

As  to  recognition  of  Texas,  see  nupra,  <S  70. 

In  President  Polk's  message  of  April  28,  1848,  after  reciting  an  ofler 
from  Yucatan  "to  transfer  the  dominion  and  sovereignty  of  the  penin- 
sula to  the  United  States,"  he  says,  '^  whilst  it  is  not  my  pnri)()se  to 
recommend  tiie  ado])tion  of  any  measure  with  a  view  to  the  acquisition 
of  the  'dominion  and  soveri'ignty  over  Yucatan,'  yet,  according  to  our 
established  policy,  we  could  not  consent  to  a  transfer  of  this  -dominion 
and  sovereignty'  to  any  other  power."  Congress  took  no  action  on  this 
message  of  President  Polk. 

The  correspondence  in  this  connection  is  given  in  the  Iiritish  and  Foreign 
State  Papers  for  1860-'G1,  pp.  1184/. 

As  to  discussion  in  reference  to  Yucatan,  see  supra,  '^  57. 

The  correspondence  of  the  United  States  with  Yucatan  relative  to  the  inde- 
pendence of  that  state  and  the  offer  of  its  sovereignty  to  the  United  States 
will  be  found  in  Senate  Ex.  Doc.  40,  30th  Cong.,  1st  sess.  See  also  same 
session  Senate  Ex.  Doc.  Nos.  45,  4-9.  For  other  palters  relative  thereto 
see  the  Br.  and  For.  St.  Pap.  for  18G0-T)1.  vol.  51. 

S.  Mis.  ir,2-Yor,.  I 30  ^^"^ 


§  72.]  INTERVENTION,  [CHAP.  III. 

The  policy  of  tlie  United  States  on  the  subject  of  territorial  growth 
is  discussed  in  the  following  letters  of  Mr.  Everett: 

"  You  arc  well  acquainted  with  the  melancholy  circumstances  which 
have  hitherto  prevented  a  replj'  to  the  note  which  you  addressed  to 
my  ])redecessor  on  the  8th  of  July. 

"  That  note,  and  the  instruction  of  M.  de  Turgot  of  the  31st  March, 
with  a  similar  communication  from  the  English  minister,  and  the  projet 
of  a  convention  between  the  three  i)owers  relative  to  Cuba,  have  been 
among  the  first  subjects  to  which  mj-  attention  has  been  called  by  the 
President. 

"  The  substantial  portion  of  the  proposed  convention  is  expressed  in 
a  single  article  in  the  following  terms: 

'"The  high  contracting  parties  hereby,  severally  and  collectively,  dis- 
claim, now  and  for  hereafter,  all  intention  to  obtain  possession  of  the 
Island  of  Cuba,  and  they  respectively  bind  themselves  to  discounte- 
nance all  attempt  to  that  effect  on  the  i^art  of  any  power  or  individuals 
whatever.' 

"  '  The  high  contracting  parties  declare,  severally  and  collectively, 
that  they  will  not  obtain  or  maintain  for  themselves  or  for  any  one  of 
themselves  any  exclusive  control  over  the  said  island,  nor  assume  nor 
exercise  any  dominion  over  the  same.' 

"The  Presidetit  has  given  the  most  serious  attention  to  this  proposal, 
to  the  notes  of  the  French  and  British  ministers  accompanying  it,  and 
to  the  instructions  of  M.  de  Turgot  and  the  Earl  of  Malmesbury,  trans- 
mitted with  the  project  of  the  convention,  and  he  directs  me  to  make 
known  to  you  the  view  which  he  takes  of  this  important  ^nd  delicate 
subject. 

"The  President  fully  concurs  with  his  predecessors,  who  have,  on 
more  than  one  occasion,  authorized  the  declaration  referred  to  by  M. 
de  Turgot  and  Lord  Malmesbury  that  the  United  States  could  not  see 
with  indifference  the  Island  of  Cuba  fall  into  the  possession  of  any  other 
European  Government  than  Spain  ;  not,  however,  because  we  should 
be  dissatisfied  with  any  natural  increase  of  territory  and  power  on  the 
part  of  France  or  England.  France  has  within  twenty  years  acquired 
a  vast  domain  on  the  nortliern  coast  of  Africa,  with  a  fair  prospect  of 
indefinite  extension.  England,  within. half  a  century,  has  added  very 
extensively  to  her  Empire.  These  acquisitions  have  created  no  uneasi- 
ness on  the  part  of  the  United  States. 

"  In  like  manner  the  United  States  have  within  the  same  period 
greatly  increased  their  territory.  The  largest  addition  was  that  of 
Louisiana,  which  was  purchased  from  France.  These  accessions  of  ter- 
ritory have  probably  caused  no  uneasiness  to  the  great  European  pow- 
ers, as  they  have  been  brought  about  by  the  operation  of  natural  causes, 
and  without  any  disturbance  of  the  international  relations  of  the  prin- 
cipal states.  They  have  been  followed  also  hy  a  great  increase  of  mut- 
562 


CHAP.  III.J  "ACCKETION,  NOT    COLONIZATION."  [§72. 

ually  beucticial  commercial  intercourse  between  the  United  States  and 
Europe. 

"But  the  case  would  be  different  in  reference  to  the  transfer  of  Cuba 
from  Spain  to  any  other  European  })o\ver.  That  event  could  uot  take 
place  without  a  serious  deranfjement  of  the  interuational  system  dow 
existing,  and  it  would  indicate  designs  in  reference  to  this  hemispliere 
which  could  not  but  awaken  alarm  in  the  United  States. 

"  We  should  view  it  in  somewhat  the  same  light  in  which  France  and 
England  would  view  the  acquisition  of  some  ini])ortant  island  in  the 
Mediterranean  by  the  United  States,  with  thisdilference,  it  is  true,  that 
the  attempt  of  the  United  States  to  establish  themselves  in  Europe 
would  be  a  novelty,  while  the  api)earance  of  a  European  power  in  this 
part  of  the  world  is  a  familiar  fact ;  but  this  difference  in  the  two  cases 
is  merely  historical,  and  would  not  diminish  the  anxiety  which,  on 
political  grounds,  would  be  caused  by  any  great  demonstration  of 
European  power  in  a  new  direction  in  America. 

"  M.  de  Turgot  states  that  France  could  never  see  with  indifference 
the  possession  of  Cuba  by  any  power  but  Spain,  and  explicitly  declares 
that  she  has  no  wish  or  intention  of  appropriating  the  island  to  herself, 
and  the  English  minister  makes  the  same  avowal  on  behalf  of  his  Gov- 
ernment. ]\I.  de  Turgot  and  Lord  Malmesbuiy  do  the  Government  of 
the  United  States  no  more  than  justice  in  remarking  that  they  have 
often  pronounced  themselves  substantially  in  the  same  sense.  The 
President  does  not  covet  the  acquisition  of  Cuba  for  the  United  States. 
At  the  same  time  he  considers  the  condition  of  Cuba  as  mainly  an 
American  question.  The  proposed  convention  proceeds  on  a  different 
principle.  It  assumes  that  the  United  States  have  no  other  or  greater 
interest  in  the  question  than  France  or  England,  whereas  it  is  neces- 
sary only  to  cast  one's  eye  on  the  ma])  to  see  how  remote  are  the  rela- 
tions of  Europe,  and  how  intimate  those  of  the  United  States  with  this 
island. 

"  The  President,  doing  full  justice  to  the  friendly  spirit  in  which  his 
concurrence  is  invited  by  France  and  England,  and  not  insensible  to 
the  advantages  of  a  good  understanding  between  the  three  powers  in 
reference  to  Cuba,  feels  himself,  nevertheless,  unable  to  become  a  party 
to  the  proposed  compact  for  the  following  reasons : 

''  It  is,  in  the  first  place,  in  his  judgment,  clear  (as  far  as  the  respect 
due  from  the  Executive  to  a  co  ordinate  branch  of  the  Government  will 
permit  him  to  anticipate  its  decision)  that  no  such  convention  would  be 
viewed  with  favor  by  tlui  Senate.  Its  certain  rejection  by  that  body 
would  leave  the  question  of  Cuba  in  a  more  unsettled  ])osition  than 
it  is  now.  This  objection  would  not  require  the  President  to  withhold 
his  concurrence  from  the  convention  if  no  other  objection  existed,  and 
if  a  strong  sense  of  the  utility  of  the  measure  rendered  it  his  duty,  as 
far  as  Executive  action  is  concerned,  to  give  his  consent  to  the  arrange- 
ment.    Such,  however,  is  not  the  case. 

563 


§  72.]  INTERVENTION.  [CHAP.  III. 

"  The  couvention  would  be  of  no  value  uuless  it  were  lastiug  ;  accord- 
ingly its  terms  express  a  perpetuity  of  purpose  and  obligation.  !N^ow,  it 
may  well  be  doubted  whether  the  Constitution  of  the  United  States 
would  allow  tUe  treaty- making  power  to  impose  a  permanent  disability 
on  the  American  Government  for  all  comiug  time,  and  prevent  it,  nnder 
any  future  change  of  circumstances,  from  doing  what  has  been  so  often 
done  in  times  past.  In  1803  the  United  States  purchased  Louisiana  of 
France,  and  in  1819  they  purchased  Florida  of  Spain.  It  is  not  within 
the  competence  of  the  treaty-making  power  in  1852  eflectually  to  bind 
the  Government,  in  all  its  branches,  and  for  all  coming  time,  not  to  make 
a  similar  purchase  of  Cuba.  A  like  remark,  I  imagine,  may  be  made 
even  in  reference  both  to  France  and  England,  where  the  treaty-making 
power  is  less  subject  than  it  is  with  us  to  the  control  of  other  branches 
of  the  Government. 

"  There  is  another  strong  objection  to  the  proposed  agreement. 
Among  the  oldest  traditions  of  the  Federal  Government  is  an  aversion 
to  political  alliances  with  European  powers.  In  his  memorable  fare- 
well address.  President  Washington  says  :  '  The  great  rule  of  conduct 
for  us  in  regard  to  foreign  lelations  is,  in  extending  our  commercial  re- 
lations, to  have  with  them  as  little  political  connection  as  possible.  So 
far  as  we  have  alreadj'  formed  engagements  let  them  be  fulfilled  with 
perfect  good  faith.  Here  let  us  stop.'  President  Jefierson,  in  his  in- 
augural address  in  1801,  warned  the  country  against  'entangling  alli- 
ances.' This  expression,  now  become  proverbial,  was  unquestionably 
used  by  Mr.  Jeiferson  in  reference  to  the  alliance  with  France  of  1778, 
an  alliance  at  the  time  of  incalculable  benefit  to  the  Cnited  States,  but 
which,  in  less  than  twenty  years,  came  near  involving  us  in  the  wars 
of  the  French  revolution,  and  laid  the  foundation  of  heavy  claims 
upon  Congress,  not  extinguished  to  the  present  day.  It  is  a  significant 
coincidence  that  the  particular  provision  of  the  alliance  which  occa- 
sioned these  evils  was  that  under  which  France  called  upon  us  to  aid 
her  in  defending  her  West  Indian  possessions  against  England.  Noth- 
ing less  than  the  unbounded  influence  of  Washington  rescued  the 
Union  from  the  perils  of  that  crisis,  and  preserved  our  neutrality. 

"  But  the  President  has  a  graver  objection  to  entering  into  the  pro- 
posed convention.  He  has  no  wish  to  disguise  the  feeling  that  the 
compact,  although  equal  in  its  terms,  would  be  very  unequal  in  sub- 
stance. France  and  England  by  entering  into  it  would  disable  them- 
selves from  obtaining  possession  of  an  island  remote  from  their  seats 
of  Government,  belonging  to  another  European  power,  whose  natural 
right  to  possess  it  must  always  be  as  good  as  their  own — a  distant  island 
in  another  hemisi)heie,  and  one  which,  by  no  ordinary  or  peaceful  course 
0^  things,  could  ever  belong  to  either  of  them.  If  the  present  balance 
of  power  in  Eiiro[)e  should  be  broken  up — if  Spain  should  become  una- 
ble to  maintain  the  island  in  her  possession,  and  France  and  England 
should  be  engaged  in  a  death  struggle  with  each  other— Cuba  might 
564 


CHAP.  III.]  ''ACCRETIOX,  NOT    COLONIZATION."  [§  72. 

tlieu  be  the  prize  of  the  victor.  Till  the.se  events  ;ill  take  place,  the 
President  does  not  see  how  Cuba  can  belong  to  any  P^nropean  power 
but  Spain. 

"The  United  States,  on  the  other  hand,  would,  by  the  j)roi)0.sed  con- 
vention, disable  themselves  from  making  an  acquisition  which  might 
take  jdace  without  any  disturbance;  of  existing  foreign  relations,  and  in 
the  natural  order  of  things.  The  Island  of  Cuba  lies  at  our  doors.  It 
commands  the  approach  to  the  Gulf  of  Mexico,  which  washes  the  shores 
of  five  of  our  States.  It  bars  the  entrance  of  that  great  river  which 
drains  half  the  Xorth  American  continent,  and  with  its  tributaries  forms 
the  largest  system  of  internal  water  communication  in  the  world.  It 
keeps  watch  at  the  doorway  of  our  intercourse  with  California  by  the 
Isthmus  route.  If  an  island  like  Cuba,  belonging  to  the  Spanish  Crown, 
guarded  the  entrance  of  the  Thames  and  the  Seine,  and  the  United 
States  should  propose  a  convention  like  this  to  France  and  England, 
those  powers  would  assuredly  feel  that  the  disability  assumed  by  our- 
selves was  far  less  serious  than  that  which  we  asked  them  to  assume. 

"  The  opinions  of  American  statesmen  at  different  times  and  under 
varying  circumstances  have  differed  as  to  the  desirableness  of  the  ac- 
quisition of  Cuba  by  the  United  States.  Territorially  and  commercially, 
it  would  in  our  hands  be  an  extremely  valuable  possession.  Under 
certain  contingencies  it  might  be  almost  essential  to  our  safety.  Still, 
for  domestic  reasons,  on  which  in  a  communication  of  this  kind  it  might 
not  be  i)roper  to  dwell,  the  President  thinks  that  the  incorporation  of 
the  island  into  the  Union  at  the  i)re.sent  time,  although  effected  with 
the  consent  of  Spain,  would  be  a  hazardous  measure,  and  he  would 
consider  its  acquisition  by  force,  except  in  a  just  war  with  Spain  (should 
an  event  so  gravely  to  be  deprecated  take  place),  as  a  disgrace  to  the 
civilization  of  the  age. 

"  The  President  has  given  ample  proof  of  the  sincerity  with  which  he 
holds  these  views.  He  has  thrown  the  whole  force  of  his  constitutional 
power  against  all  illegal  attacks  upon  the  island.  It  would  have  been 
perfectly  easy  for  him,  without  any  seeming  neglect  of  duty,  to  allow 
projects  of  a  formidable  character  to  gather  strength  by  connivance. 
No  amount  of  obloquy  at  home,  no  embarrassments  caused  by  the  indis- 
cretions of  the  colonial  government  of  Cuba,  have  moved  him  from  the 
path  of  duty  in  this  respect.  The  captain -general  of  that  island,  an  offi- 
cer apparently  of  upright  and  conciliatory  character,  but  probably  more 
used  to  military  command  than  the  management  of  civil  affairs,  has,  on 
a  punctilio  in  reference  to  the  ])urser  of  a  private  steamship  (who  seems 
to  have  been  entirely  innocent  of  the  matters  laid  to  his  charge),  refused 
to  allow  passengers  and  the  mails  of  the  United  States  to  be  landed 
from  a  vessel  having  him  on  board.  This  certaiidy  is  a  very  extraor- 
dinary mode  of  animadverting  ui)on  a  supposed  abuse  of  the  liberty  of 
the  press  by  the  subject  of  a  foreign  Government  in  his  native  country. 
The  captain-general  is  not  permitted  by  his  Government,  .3,000  miles 

565 


§  72.]  INTERVENTION.  [CHAP.  III. 

off,  to  liold  any  diplomatic  intercourse  with  the  United  States.  He  is 
subject  in  no  degree  to  the  direction  of  the  Spanish  minister  at  Wash- 
ington ;  and  the  President  lias  to  choose  between  a  resort  to  force,  to 
compel  the  abandonment  of  this  gratuitous  interruption  of  commercial 
intercourse  (which  would  result  in  war),  and  a  delay  of  weeks  and 
months,  necessary  for  a  negotiation  with  Madrid,  ^th  all  the  chances 
of  the  most  deplorable  occurrences  in  the  interval — and  all  for  a  trifle, 
that  ought  to  have  admitted  a  settlement  by  an  exchange  of  notes  be- 
tween Washington  and  the  Havana.  The  President  has,  ho^vever,  pa- 
tiently submitted  to  these  evils,  and  has  continued  faithfully  to  give  to 
Cuba  the  advantages  of  those  principles  of  the  public  law  under  the 
shelter  of  which  she  has  departed,  in  this  case,  from  the  comity  of  na- 
tions. But  the  incidents  to  which  I  allude,  and  which  are  still  in  train, 
are  among  many  others  which  point  decisively  to  the  expediencj"  of 
some  change  in  the  relations  of  Cuba;  and  the  President  thinks  that 
the  influence  of  France  and  England  with  Spain  would  be  well  em- 
ployed in  inducing  her  so  to  modify  the  administration  of  the  Govern- 
ment of  Cuba  as  to  afford  the  means  of  some  prompt  remedy  for  evils 
of  the  kind  alluded  to,  which  have  done  much  to  increase  the  spirit  of 
unlawful  enterprise  against  the  island. 

''That  a  convention  such  as  is  proposed  would  be  a  transitory  ar- 
rangement, sure  to  be  swept  away  by  the  irresistible  tide  of  affairs  in  a 
new  country,  is,  to  the  apprehension  of  the  President,  too  obvious  to 
require  a  labored  argument.  The  project  rests  on  principles  applicable, 
if  at  all,  to  Europe,  where  international  relations  are,  in  their  basis,  of 
great  antiquity,  slowly  modified,  for  the  most  part,  in  the  progress  of 
time  and  events,  and  not  applicable  to  America,  which,  but  lately  a 
waste,  is  filling  up  with  intense  rapidity,  and  adjusting  on  natural  prin- 
ciples those  territorial  relations  which,  on  the  first  discovery  of  the  con- 
tinent, were  in  a  good  degree  fortuitous. 

"The  comparative  history  of  Europe  and  America,  even  for  a  single 
century,  shows  this.  In  1752  France,  England,  and  Spain  were  not 
materially  different  in  their  political  i)osition  in  Europe  from  what  they 
now  are.  They  were  ancient,  mature,  consolidated  states,  established 
in  their  relations  with  each  other  and  the  rest  of  the  world — the  leading 
I)Owers  of  Western  and  Southern  Europe.  Totally  different  was  the 
state  of  things  in  America.  The  United  States  had  no  existence  as  a 
people ;  a  line  of  English  colonies,  not  numbering  much  over  a  million 
of  inhabitants,  stretched  along  the  coast.  France  extended  from  the 
Bay  of  Saint  Lawrence  to  the  Gulf  of  Mexico,  and  from  the  Alleghanies 
to  the  Mississippi ;  beyond  which,  westward,  the  continent  was  a  wilder- 
ness, occupied  by  wandering  savages,  and  subject  to  a  conflicting  and 
nominal  claim  on  the  part  of  France  and  Spain.  Everything  in  Europe 
was  comparatively  fixed  ;  everything  in  America,  provisional,  incipient, 
and  temporary,  except  the  law  of  progress,  which  is  as  organic  and  vital 
in  the  youth  of  states  as  of  individual  men.  A  struggle  between  the 
5GC 


CHAP.  III.]  .    "accretion,  NOT    COLONIZATION."  [§  72. 

provincial  authorities  of  France  and  England  for  the  i)o.sse88ion  of  a 
petty  stockade  at  the  confluence  of  the  Monongalicla  and  AUeghany, 
kindled  the  seven  years'  war;  at  the  close  of  which,  the  great  European 
powers,  not  materially  affected  in  their  relations  at  home,  had  under- 
gone astonishing  changes  on  this  continent.  France  had  disappeared 
from  the  map  of  America,  whose  inmost  recesses  had  been  penetrated 
by  her  zealous  missionaries  and  her  resolute  and  gallant  adventurers; 
England  had  added  theCanadas  to  her  transatlantic  dominions;  Spaiu 
had  become  the  mistress  of  Louisiana,  so  that,  in  the  language  of  the 
archbishop  of  Mexico,  in  1770,  she  claimed  Siberia  as  the  northern 
boundary  of  New  Spain. 

"  Twelve  years  only  from  the  treaty  of  Paris  elapsed,  and  another 
great  change  took  place,  fruitful  of  still  greater  changes  to  come.  The 
American  Kevolution  broke  out.  It  involved  France,  England,  and 
Spain  in  a  tremendous  struggle,  and  at  its  close  the  United  States  of 
America  had  taken  their  place  in  the  family  of  nations.  In  Europe  the 
ancient  states  were  restored  substantially  to  their  former  equilibrium, 
but  a  new  element,  of  incalculable  importance  in  reference  to  territorial 
arrangements,  is  henceforth  to  be  recognized  in  America. 

"Just  twenty'  years  from  the  close  of  the  war  of  the  American  Kevo- 
lution, France,  by  a  treaty  with  Spain — of  which  the  provisions  have 
never  been  disclosed — possessed  herself  of  Louisiana,  but  did  so  only  to 
cede  it  to  the  United  States;  and  in  the  same  year  Lewis  and  Clark 
started  on  their  expedition  to  plant  the  flag  of  the  United  Slates  on  the 
shores  of  the  Pacific.  In  1819  Florida  was  sold  by  Spain  to  the  United 
States,  whose  territorial  possessions  in  this  way  had  been  increased 
threefold  in  half  a  century.  This  last  acquisition  was  so  much  a  matter 
of  course  that  it  had  been  distinctly  foreseen  by  the  Count  Aranda,  then 
prime  minister  of  Spain,  as  long  ago  as  1783. 

"  But  even  these  momentous  events  were  but  the  forerunners  of  new 
territorial  revolutions  still  more  stu])endous.  A  dynastic  struggle  be- 
tween the  Emperor  Napoleon  and  Spain,  commencing  in  1808,  convulsed 
the  peninsula.  The  vast  possessions  of  the  Spanish  Crown  on  this  conti- 
nent— vice-royalties  and  captain-generalships,  filling  tlie  space  bt'tween 
California  and  Cape  Horn — one  after  another,  asserted  their  independ- 
ence. No  friendly  power  in  Europe  at  that  time  was  able,  or,  if  able, 
was  willing,  to  succor  Spain,  or  aid  her  to  prop  the  crumbling  buttresses 
of  her  colonial  empire.  So  far  from  it,  when  France,  in  1823,  threw  an 
army  of  one  hundred  thousand  men  into  S])ain  to  control  her  doau\stic 
politics,  England  thought  it  necessary  to  counteract  the  movement  l)y 
recognizing  the  independence  of  the  Spanish  provinces  in  America.  In 
the  remarkable  language  of  the  distinguished  minister  of  the  day,  iu 
order  to  redress  the  balance  of  power  in  Europe,  he  called  into  exist- 
ence a  New  World  in  the  West — somewhat  overrating,  perhaps,  the 
extent  of  the  derangement  in  the  Old  Woild,  and  not  doing  full  justice 

567 


§  72.]  INTERVENTION.  .  [CHAP.  III. 

to  the  position  of  the  United  States  in  America,  or  their  influence  on 
the  fortunes  of  their  sister  Kepublics  on  this  continent. 

"  Thus,  in  sixty  years  from  the  close  of  the  seven  years'  war,  Spain, 
like  France,  had  lost  the  last  remains  of  her  once  imperial  i)ossessions 
on  this  continent.  The  United  States,  meantime,  were,  by  the  arts  of 
peace  and  the  healthful  progress  of  things,  rapidly  enlarging  their 
dimensions  and  consolidating  their  power. 

"  The  great  march  of  events  still  went  on.  Some  of  the  new  Eepub- 
lics,  from  the  effect  of  a  mixture  of  races,  or  the  want  of  training  in  lib- 
eral institutions,  showed  themselves  incapable  of  self-government.  The 
province  of  Texas  revolted  from  Mexico  by  the  same  right  by  which 
Mexico  revolted  from  Spain.  At  the  memorable  battle  of  San  Jacinto, 
in  1836,  sbe  passed  the  great  ordeal  of  nascent  states,  and  her  inde- 
pendence was  recognized  by  this  Government,  by  France,  by  England, 
and  other  Enro])ean  powers.  Mainly  peopled  from  the  United  States, 
she  sought  naturally  to  be  incorporated  into  the  Union.  The  offer  was 
repeatedly  rejected  by  Presidents  Jackson  and  Van  Buren,  to  avoid  a 
collision  with  Mexico.  At  last  the  annexation  took  i^lace.  As  a  do- 
mestic question,  it  is  no  fit  subject  for  comment  in  a  communication  to 
a  foreign  minister ;  as  a  question  of  public  law,  there  never  was  an 
extension  of  territory  more  naturally  or  justifiably  made. 

"  It  produced  a  disturbed  relation  with  the  Government  of  Mexico; 
war  ensued,  and  in  its  results  other  extensive  territories  were,  for  a 
large  pecuniary  compensation  on  the  part  of  the  United  States,  added 
to  the  Union.  Without  adverting  to  the  divisions  of  opinion  which 
arose  in  reference  to  this  war,  as  must  always  happen  in  free  countries 
in  reference  to  great  measures,  no  person,  surveying  these  events  with 
the  eye  of  a  comprehensive  statesmanship,  can  fail  to  trace  in  the  main 
result  the  undoubted  operation  of  the  law  of  our  political  existence. 
The  consequences  are  before  the  world.  Vast  provinces,, which  had 
languished  for  three  centuries  under  the  leaden  sway  of  a  stationary 
system,  are  coming  under  the  influences  of  an  active  civilization.  Free- 
dom of  speech  and  the  press,  the  trial  by  jury,  religious  equality,  and 
representative  Government,  have  been  carried  by  the  Constitution  of 
the  United  States,  into  extensive  regions  in  which  they  were  unknown 
before.  By  the  settlement  of  California  the  great  circuit  of  intelligence 
round  the  globe  is  completed.  The  discovery  of  the  gold  of  that  region — 
leading,  as  it  did,  to  the  same  discovery  in  Australia— has  touched  the 
nerves  of  industry  throughout  the  world.  Every  addition  to  the  terri- 
tory of  the  American  Union  has  given  homes  to  European  destitution 
and  gardens  to  European  want.  From  every  part  of  the  United  King- 
dom, from  France,  from  Switzerland  and  Germany,  and  from  the  ex- 
tremest  north  of  Europe,  a  march  of  immigration  has  been  taken  up 
such  as  the  world  has  never  seen  before.  Into  the  United  States — 
grown  to  their  present  extent  in  the  manner  described — but  little  less 
than  half  a  million  of  the  population  of  the  Old  World  is  annually  pour- 
568 


CHAP.  III.]  "accretion,  not  coi.onization."  [§  72. 

ill?:,  to  be  immediately  incorporated  into  an  industrious  and  i)rosi)erou8 
community,  in  the  bosom  of  which  they  find  imlitical  :ind  relij^ious  lib- 
erty, social  position,  employment,  and  bread.  It  is  a  fact  which  would 
defy  belief,  were  it  not  the  result  of  official  inquiry,  that  the  immigrants 
to  the  United  States  from  Ireland  alone,  besides  havinji^  subsisted  them- 
selves, have  sent  back  to  their  kindred,  fur  the  three  last  years,  nearly 
five  millions  of  dollars  annually;  thus  doubling  in  three  years  the  pur- 
chase-money of  Louisiana. 

"  Such  is  the  territorial  development  of  the  United  States  in  the  past 
century.  Is  it  possible  that  Europe  can  contemplate  it  with  an  un- 
friendly or  jealous  eye  ?  What  would  have  been  her  condition,  in  these 
trying  years,  but  for  the  outlet  we  have  furnished  for  lier  starving  mill- 
ions? 

"  Spain,  meantime,  has  retained  of  her  extensive  dominions  in  this 
bemispliere  but  the  two  Islands  of  Cuba  and  Porto  Rico.  A  respectful 
sympathy  with  the  fortunes  of  an  ancient  ally  and  a  gallant  people,  with 
whom  the  United  States  have  ever  maintained  the  most  friendly  rela- 
tions, would,  if  no  other  reason  existed,  make  it  our  duty  to  leave  her 
in  the  undisturbed  possession  of  this  little  remnant  of  her  mighty  trans- 
atlantic empire.  The  President  desires  to  do  so ;  no  word  or  deed  of 
his  will  ever  question  her  title  or  shake  her  possession.  But  can  it  be 
expected  to  last  very  long'?  Can  it  resist  this  mighty  (jurrent  in  the 
fortunes  of  the  world  1  Is  it  desirable  that  it  should  be  so  !  Can  it  be 
for  the  interest  of  Spain  to  cling  to  a  possession  that  can  only  be  main- 
tained by  a  garrison  of  twenty-five  or  thirty  thousand  troops,  a  powerful 
naval  force,  and  an  annual  expenditure,  for  both  arms  of  the  service,  of 
at  least  twelve  millions  of  dollars'?  Cuba,  at  this  moment,  costs  more 
to  Spain  than  the  entire  naval  and  military  establishment  of  the  United 
States  costs  the  Federal  Government.  So  far  from  being  really  injured 
by  the  loss  of  this  island,  there  is  no  doubt  that,  were  it  peacefully  trans- 
ferred to  the  United  States,  a  prosperous  commerce  between  Cuba  and 
Spain,  resulting  from  ancient  associations  and  common  language  and 
tastes,  would  be  far  more  productive  than  the  best  contrived  system  of 
colonial  taxation.  Such,  notoriously,  has  been  the  result  to  Great  Brit- 
ain of  the  establishment  of  the  independence  of  the  United  States.  The 
decline  of  Spain  from  the  position  which  she  held  in  the  time  of  Charles 
the  Fifth  is  coeval  with  the  foundation  of  her  colonial  System ;  while 
within  twenty-five  years,  and  since  the  loss  of  most  of  her  colonies,  she 
has  entered  upon  a  course  of  rapid  im])rovement  unknown  since  the 
abdication  of  that  Emjieror. 

"  I  will  but  allude  to  an  evil  of  the  first  magnitude :  I  mean  the  Af- 
rican slave-trade,  in  the  suppression  of  which  France  and  England  take 
a  lively  interest — an  evil  which  still  forms  a  great  reproach  u{)on  the 
civilization  of  Christendom,  and  perpetuates  the  barbarism  of  Africa, 
but  for  which  it  is  to  be  feared  there  is  no  hope  of  a  complete  remedy 

while  Cuba  remains  a  Spanish  colonv. 

5G9 


§  72.]  INTERVENTION.  [CIIAP.  III. 

"But,  whatever  may  be  thoiiglit  of  these  last  suggestious,  it  would 
seem  imi)o.ssiblelbr  auy  oue  who  reflects  upou  the  events  glanced  at  in 
this  note  to  mistake  the  law  of  Ann  rican  growth  and  progress,  or  think 
it  can  be  ultimately  arrested  by  a  convention  like  that  proi)Osed.  In 
the  judgment  of  the  President,  it  would  be  as  easy  to  throw  a  dam  from 
Cape  Florida  to  Cuba  in  the  Lope  of  stopping  the  flow  of  the  Gulf 
stream,  as  to  attempt,  by  a  compact  like  this,  to  fix  the  fortunes  of 
Cuba  'now  and  tor  hereafter';  or,  as  expressed  in  the  French  text  of 
tlie  convention,  'for  the  i)resent  as  for  the  future' (j^owr  le present  comme 
pour  r<n'cnir),  that  is,  for  all  coming  time  The  history  of  the  past — of 
the  recent  past — affords  no  assurance  that  twenty  years  hence  France 
or  England  will  even  wish  that  Spain  should  retain  Cuba;  and  a  cen- 
tury hence,  judging  of  what  will  be  from  what  has  been,  the  pages  which 
record  this  proposition  will,  like  the  record  of  the  family  compact  be- 
tween France  and  Spain,  have  no  interest  but  for  the  antiquary. 

''  Even  now  the  President  cannot  doubt  that  both  France  and  Eng- 
land would  prefer  any  change  in  the  condition  of  Cuba  to  that  wliicli 
is  most  to  be  apprehended,  namely,  an  internal  convulsion  which  should 
renew  the  horrors  and  the  fate  of  San  Domingo. 

"I  will  intimate  a  final  objection  to  the  proposed  convention.  M.  de 
Turgot  and  Lord  Malmesbury  put  forward  as  the  reason  for  entering 
into  such  a  compact  'the  attacks  which  have  lately  been  made  on  the 
Island  of  Cuba  by  lawless  bands  of  adventurers  from  the  United  States, 
with  the  avowed  design  of  taking  possession  of  that  island.'  The  Presi- 
dent is  convinced  that  the  conclusion  of  such  a  treaty,  instead  of  putting 
a  sto])  to  these  lawless  proceedings,  would  give  a  new  and  a  powerful 
impulse  to  them.  It  would  strike  a  death-blow  to  the  conservative 
policy  hitherto  pursued  in  this  country  toward  Cuba.  oSTo  administra- 
tion of  this  Government,  however  strong  in  the  public  confidence  in 
other  respects,  could  stand  a  day  under  the  odium  of  having  stipulated 
with  the  great  powers  of  Europe,  that  in  no  future  time,  under  no 
change  of  circumstances,  by  no  amicable  arrangement  with  Sitain,  by 
no  act  of  lawful  war  (should  that  calamity  unfortunately  occur),  by  no 
consent  of  the  inhabitants  of  the  island,  should  they,  like  the  posses- 
sions of  Spain  on  the  American  continent,  succeed  in  rendering  them- 
selves inde])endent;  in  tine,  by  no  overruling  necessity  of  self-preserva- 
tion should  the  United  States  ever  make  the  acquisition  of  Cuba. 

"For  these  reasons,  which  the  President  has  thought  it  advisable, 
considering  the  importance  of  the  subject,  to  direct  me  to  unfold,  at 
some  length,  he  leels  constrained  to  decline  resi)ectfully  the  invitation 
of  France  and  England  to  become  a  party  to  the  proposed  convention. 
He  is  persuaded  that  these  friendly  powers  will  not  attribute  this  re- 
fusal to  any  insensibility  on  his  part  to  the  advantages  of  the  utmost 
harmony  between  the  great  maritime  states  on  a  subject  of  such  im- 
portance. As  little  will  Spain  draw  any  unfavorable  inference  from 
this  refusal;  the  rather,  as  the  emphatic  disclaimer  of  any  designs 
570 


CHAP.  TII.J  "accretion,  NOT    COLONIZATION."  [§  72 

against  Cuba  on  the  part  of  this  Government,  contained  in  the  present 
note,  aiiords  all  the  assurance  which  the  President  can  constitutionally, 
or  to  any  useful  purpose,  give  of  a  practical  concurrence  with  France  and 
England  in  the  wish  not  to  disturb  the  possession  of  that  island  by 
Spain." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Sartiges,  Dec.  1,  1852.  MSS.  Notes,  France. 
This  uote  wnn  accepted  by  Mr.  Marcy  and  Mr.  Cass,  succeeding  Secreta- 
ries of  State,  as  the  basis  of  the  policy  of  the  Department  in  this  line. 

"Your  dispatch  of  IGth  February  last  to  Mr.  Crampton  has  lately  ap- 
peared in  our  public  papers.  As  it  is  in  reality,  if  not  in  form,  a  rei)ly 
to  my  letter  of  the  1st  December,  1852,  on  the  subject  of  Cuba,  I  r(\gret 
that  it  Avas  not  prejnired  and  sent  before  my  retirement  IVom  the  De- 
j)artment  of  State.  But  though  I  uuist  now  do  it  as  a  private  individual, 
1  feel  as  if  it  were  to  some  extent  my  duty  to  answer  it.  I  sludl  en- 
deavor to  do  so  in  a  manner  consistent  with  my  sincere  respect  for  your 
public  character,  and  a  lively  recollection  of  your  personal  kindness 
during  my  residence  in  England. 

"  Before  remarking  on  the  contents  of  your  letter  I  will  observe  that, 
though  it  contains  some  courteous  expressions,  its  tone  is,  upon  the 
whole,  not  quite  as  conciliatory  as  might  have  been  exjjected,  consider- 
ing that  my  letter  of  the  1st  December  was  altogether  respectful  and 
friendly  toward  the  two  ])owers,  both  in  form  and  in  substance.  I  have 
heard  that  in  presenting  this  correspondence  to  Parliament  you  indulged 
'  in  some  sarcastic  remarks,'  but  J  have  not  seen  any  rei)ort  of  them. 
Your  dispatch  is  not  free  from  a  shade  of  sarcasm  in  one  or  two  sen- 
tences. This  I  shall  endeavor  to  avoid  in  reply,  not  that  it  would  be 
diflicult  to  follow  you  into  that  field,  but  because  I  cannot  think  that  an 
encounter  of  wits  between  us  would  be  an  edifying  spectacle,  or  one 
which  would  promote  any  desirable  national  object. 

"You  say  that  in  my  letter  of  the  1st  December  I  entered  into  'ar- 
guments not  required  by  the  simple  nature  of  the  question  before  me'; 
and  the  length  of  my  letter  has  been  complained  of  in  other  quarters. 
The  question  propounded  to  us  was  ccrtainl^^  in  one  sense  simple,  as 
every  question  is  that  can  be  answered  '  Yes' or  '  No.'  But  how  va- 
rious, com])licated,  and  important  the  interests  and  relations  involved  in 
it!  Besides,  the  organ  of  every  Government  must  be  the  only  judge  of 
the  proper  length  and  relevancy  of  his  replies  to  the  communications  of 
foreign  powers.  The  j)roposal,  to  which  I  was  returning  an  answer, 
jointly  made  by  two  of  the  leading  powers  of  Europe,  related  to  the 
most  important  subject  in  the  circle  of  our  foreign  relations.  1  thought 
that  a  few  paragraphs  were  well  employed  in  unlblding  the  views  of 
the  President  on  this  subject,  and  the  reasons  why  he  declined  entering 
into  a  compact  purporting  to  bind  the  three  Governments  for  all  coming 
time  to  a  certain  line  of  ])olicy,  in  a  case  of  so  nuich  importance. 

"  You  will  recollect  that  the  members  of  our  executive  Government  do 
not  sit  in  Congress.  Those  expositions  which  are  made  in  your  J'arlia- 
ment  by  ministers — in  speeches  not  unfrequently  of  two  and  three, 
sometimes  four  and  five  hours  in  length — must  be  made  in  this  country 
in  a  Presidential  message  (rarely  alluded  to  by  your  press  without  a 
sneer  at  its  length),  or  an  Executive  report  or  dispatch.  My  letter  of 
the  1st  December  would  make  a  speech  of  about  an  hour,  which  does  not 
seem  to  me  immoderate  Jor  such  a  subject.  However,  a  little  greater 
fullness  of  statement  and  argument,  in  papers  expected  to  come  before 

671 


§  72.]  INTERVENTION.  [CHAP.  III. 

llie  i)ul)lic,  is,  it  must  be  confessed,  in  linnnony  Avitli  tlio  character  of 
our  Government,  and  is  generally  indulged  in. 

"  You  observe  that  '  the  absorption  or  annexation  of  Louisiana  in 
1803,  of  Florida  in  1819,  of  Texas  in  1845,  and  of  California  in  1848,  had 
not  escaped  the  two  powers;  still  less  did  they  require  to  be  reminded 
of  the  seven  years'  war,  or  of  the  American  war.'  But  facts  may  be 
mentioned  for  illustration  or  argument  as  well  as  information.  Most  cer- 
tainly the  important  and  notorious  events  named  by  you — leading  inci- 
dents of  the  history  of  the  United  States  and  of  the  svorld — cannot  be 
supposed  to  have  escaped  the  Governments  of  England  and  France,  who 
were  parties  to  some  of  the  most  important  of  the  transactions  in  ques- 
tion. I  had  no  thought  of  '  reminding'  your  Government  of  the  events 
of  the  seven  years'  war  and  of  the  American  Revolution  as  matters  of 
historical  fact  of  which  they  were  ignorant;  though  I  really  doubt,  and 
beg  to  say  it  witliout  offense,  whether  there  are  many  individuals  in  the 
Government  of  either  country  possessed  of  an  accurate  and  precise 
knowledge  of  the  facts  hastily  sketched  by  me.  That  sketch,  however, 
of  the  territorial  changes  which  have  taken  place  on  this  continent  dur- 
ing the  last  century  was  intended  as  an  illustration  of  the  proposition 
that  our  entire  history  shows  it  to  be  chimerical  to  attempt,  in  reference 
to  si)ecific  measures,  to  bind  up  for  all  future  time  the  discretion  of  a 
Government  established  in  a  part  of  the  world  of  which  so  much  is  still 
lying  in  a  state  of  nature. 

"  i  had  another  motive.  The  public  opinion  of  Christendom,  created 
in  a  good  degree  by  the  press,  has  become  an  element  of  great  and  in- 
creasing iiiHuence  in  the  conduct  of  international  affairs.  Now,  it  is 
very  much  the  habit  of  a  considerable  portion  of  the  European  i)ress  to 
speak  of  the  steady  and  rapid  extension  of  the  territory  of  the  United 
States  as  the  indication  of  a  grasping  spirit  on  the  ])arr  of  their  Gov- 
ernment and  ])eople.  The  subject  is  rarely  alluded  to  by  one  school  of 
transatlantic  public  writers  for  any  other  purpose.  Thus  the  i)ublic 
mind  of  the  civilized  world  is  poisoned  against  us.  There  is  not  only 
manifested,  on  the  part  of  these  writers,  an  entire  insensibility  to  the 
beauty  and  grandeur  of  the  work  that  is  going  on — more  beneficent,  if 
possible,  to  Europe  than  to  us,  in  the  relief  it  is  aff'ording  her — but  we 
are  actually  held  up  at  times  as  a  nation  of  land  pirates.  It  was  parth' 
my  object  to  counteract  this  disposition  ;  to  show  that  our  growth  had 
been  a  natural  growth  ;  that  our  most  important  accessions  of  territory 
had  taken  place  by  great  national  transactions,  to  which  England, 
France,  and  Spain  had  been  parties,  and  in  other  cases  by  the  opera- 
tion of  causes  which  necessarily  influence  the  occupation  and  settlement 
of  a  new  country,  in  strict  conformity  with  the  law  of  Jiations  an.d  not 
in  violation  of  it. 

'•You  say  that  'it  occurs  to  Her  Majesty's  Government  to  ask  for 
what  ])urpose  are  these  arguments  introduced,  with  so  much  ])rei)ara- 
tion  and  urged  with  so  much  ability,'  and  you  answei'  the  question  in 
the  following  manner:  '  It  would  appear  that  the  purpose,  not  full  ij 
avotced  but  hardly  concealed,  is  to  ])rocure  the  admission  of  a  doctrine 
that  the  United  States  have  an  interest  in  Cuba  to  which  Great  Britain 
and  Fiance  cannot  i)retend.' 

"  Uerc  a  little  unintentional  injustice  is  done  to  my  letter,  in  which 
it  is  distiiK-tly  stated  more  than  once,  for  reasons  set  forth  at  length  and  " 
very  ])artially  controverted  by  you,  that  the  Government  of  the  United 
States  considered  the  condition  of  Cuba  '  as  mainly  an  American  ques- 
tion,' in  which  they  had  a  very  deep  interest  and  you  a  very  limited  one. 

572 


ciiAr.  III.]  ''accretion,  not  colonization."  [§  72. 

iN^ot  only  was  no  attempt  whatever  made  to  conceal  this  doctrine,  but  it 
was  fullv  avowed  and  reasoned  out  in  niv  letter  of  the  1st  December, 
185L'. 

"To  meet  one  of  the  chief  {^jrounds  on  wlii(;h  the  United  States  rest 
this  claim,  that  of  geograi)hical  proximity,  after  some  local  allusions, 
of  which  I  do  not  perceive  the  exact  bearing,  you  observe,  in  ellect,  that 
Cuba  is  somewhat  nearer  to  Jamaica  than  it  is  to  the  nearest  i)art  of  the 
United  States,  and  you  consider  this  as  showing-  that  we  cannot  have 
a  greater  interest  in  the  island  than  you  have.  Now,  if  Jamaica  bore 
the  sanje  relation  to  Great  Britain  which  our  States  on  and  near  the 
Gulf  of  Mexico  bear  to  the  rest  of  the  American  Union,  your  rej)ly  to 
my  argument  would  be  good.  But  the  direct  reverse  is  the  case.  Ja- 
maica is  a  distant  colony,  whose  entire  population  (of  which  not  more 
than  one  tenth  is  of  European  origin)  does  not  exceetl  that  of  an  English 
city  of  the  second  class.  It  is,  as  I  perceive  from  your  speech  of  the  4th 
August,  a  burden  on  theimi)erial  treasury.  It  must  in  its  i)resent  state 
stand  high  on  the  list  of  the  colonies,  which  (as  ai)pears  from  Lord  Grey's 
recent  work  on  the  colonial  policy  of  your  administration)  are  regarded 
by  more  than  one  active  and  influential  i)arty  in  England  as  incum- 
brances of  which  she  ought  to  get  rid,  if  she  could  do  so  with  credit. 
How  difierent,  in  all  respects,  the  case  with  the  States  lying  on  the  Gulf 
of  Mexico !  In  extent  of  ^ea-coast,  in  the  amount  of  valuable  products 
furnished  to  the  world's  commerce,  in  the  command  of  rivers  which 
])enetrate  the  heart  of  the  continent,  they  are  a  most  im])ortant,  as  they 
are  an  integral  portion  of  the  Union.  They  are  numericallj"  all  but  a 
sixth  i>art  of  it.  The  ver^'  illustratian  made  use  of  by  you  strikingly 
confirms  instead  of  (confuting  the  doctrine  that  '  the  condition  of  Cuba 
is  mainly  an  American  question.' 

"This  proposition  could  be  enforced  by  other  strong  arguments  be- 
sides those  adduced  in  my  letter  of  1st  December ;  but  as  those  argu- 
ments, with  the  excei)tion  just  commented  upon,  have  not  been  met  by 
you,  1  deem  it  unnecessary  to  enlarge  upo.j  the  topic. 

"But  though  the  United  States  certainly  consider  that  they  have  'au 
interest  in  the  conditjou  of  Cuba  to  which  Great  Britain  and  Fiance 
cannot  pretend,'  it  is  not,  either  in  my  letter,  nor  in  any  other  American 
state  paper  within  my  recollection,  assumed  that  Great  Britain  and 
France  have 'wo  interest  in  the  maintenance  in  the  ])resent  .s^a/«  (/mo, 
and  that  the  United  States  alone  have  a  right  to  a  voice  in  the  matter.' 
Our  doctrine  is,  not  that  we  have  an  absolutely  exclusive  interest  in 
the  subject,  but  that  we  have  a  far  deej^er  and  more  immediate  interest 
than  France  or  England  can  possibly  lay  claim  to.  A  glance  at  the 
map,  one  would  think,  would  satisfy  every  imi)artial  mind  of  this  truth. 

"In  order  to  establish  for  France  and  England  an  equal  interest  with 
the  United  States  in  the  con<litiou  of  Cuba,  you  say:  'Great  Britain  is 
in  i^ossession,  by  treaty,  of  the  Island  of  Trinidacl,  which,  in  the  last 
century,  was  a  colony  of  Spain.  France  was  in  ])ossi'ssit)ii  at  the  com- 
mencement of  this  century  of  Louisiana  by  voluntary  cession  of  Spain.' 
It  is  true  that  Spain  was  compelled  by  France  to  cede  Trinidad  to 
Great  Britain  by  the  treaty  of  Amiens.  If,  while  this  cession  was  in 
agitation — as  it  was  for  some  time — the  (Jnited  States  and  any  other 
neutral  ])ower  (if  there  was  any  other),  had  exerted  themselves  to  de- 
feat it,  and  had  invited  y<ni  and  France  to  bind  yourselves  by  a  per- 
petual compact  never  to  acquire  it,  the  interference,  I  ajiprehend,  would 
have  been  regarded  as  worse  than  gratuitous.  I  caiuiot  see  why  we 
have  not  as  good  a  right  to  obtain,  if  w^e  can,  from  Spain,  the  voluntary 

573 


§  72.]  INTERVENTION.  [CHAP.  III. 

cession  of  Cuba,  as  you  bad  to  accept  tbe  compulsory  cession  of  Trini- 
dad, wbicb  is,  by  position  and  strength,  the  Cuba  of  the  southeastern 
Autilles. 

"France  was,  as  you  say,  at  the  beginning  of  this  century  in  posses- 
sion of  Louisiana  by  the  voluutary  cession  of  Spain.  This  possession, 
however  (nominal  at  best),  did  not  take  place  till  seven  months  after 
France  had  sold  Louisiana  to  the  United  States  for  eighty  millions  of 
francs,  and  it  lasted  only  from  the  30th  November  to  the  20th  Decem- 
ber, 1803.  The  object  of  France  in  acquiring  Louisiana  was  to  re-es- 
tablish herself  in  the  interior  of  this  country;  an  object,  I  need  not 
saj',  as  menacing  to  your  North  American  possessions  as  to  the  United 
States.  Is  it  possible  jou  can  think  such  a  possession  of  Louisiana  for 
such  a  purpose  a  sufficient  ground  on  the  part  of  France  for  interfering 
with  our  relations  with  Cuba?  May  she,  a  European  power,  without 
consulting  us,  obtain  from  Spain  in  1800  a  cession  of  half  the  habit- 
able portion  of  North  America,  a  cession  which  threw  her  for  fifteen 
hundred  miles  on  our  western  frontier,  and  not  only  shut  us  out  from 
the  Pacific,  but  enabled  her  to  close  the  Mississippi;  and  is  it  so  very 
unreasonable  in  us  to  decline  her  invitation  to  bind  ourselves  for  all 
time  not  to  accept  the  cession  of  an  island  which  lies  within  twenty- 
live  leagues  of  our  coasf?  Does  she  even  derive  her  right  thus  to  con- 
trol our  relations  with  (Juba  in  1853  from  her  twenty  days'  possession 
of  Louisiana  in  1803?  What  can  be  clearer  than  that,  whatever  right 
accrued  to  her  from  that  three  weeks'  possession  (which  was  a  mere 
ceremonial  affair,  to  give  form  to  the  transfer  of  the  province  to  the 
United  States),  must  have  passed  to  us  by  that  transfer,  followed  by 
our  actual  possession  and  occupation  for  half  a  century  ? 

'•  You  observe  that  'Lord  Malmesbury  and  M.  Turgot  put  forward,  as 
a  reason  for  entering  into  the  proposed  compact,  the  attacks  which  had 
been  made  on  the  Island  of  Cuba  by  lawless  bands  of  adventurers  from 
the  United  States,  and  with  the  avowed  design  of  taking  possession  of 
that  island,'  and  to  this  reason  you  add,  'Mr.  Everett  replies  in  these 
terms :  '  The  President  is  convinced  that  the  conclusion  of  such  a  treaty, 
instead  of  putting  a  stop  to  these  lawless  proceedings,  would  give  a  new 
and  powerful  impulse  to  them,'  and  this  argument  you  call  'not  onlj- 
unfounded  but  disquieting.' 

"After  acknowledging,  rather  coldly,  I  think,  the  conduct  of  the  late 
President  in  disavowing  and  discouraging  the  lawless  enterprises  re- 
ferred to,  you  reproachfully  pronounce  my  remark  just  cited  'a  melan- 
choly avowal  for  the  chief  of  a  free  state';  and  you  seem  to  intimate, 
without  expressly  saying  so,  that  it  implies,  on  the  part  of  the  people 
of  the  United  States,  an  insensibility  'to  the  value  of  the  eternal  laws 
of  right  and  wrong,  of  peace  and  friendshij),  and  of  duty  to  our  neigh- 
bor, which  ought  to  guide  every  Christian  nation.'  You  also  take  oc- 
casion, in  reference  to  the  same  remark,  to  impress  upon  the  people  of 
the  United  States  'the  utility  of  those  rules  for  the  observance  of  inter- 
national relations,  which  for  centuries  have  been  known  to  Europe  by 
the  name  of  the  law  of  nations.  Among  the  commentators  on  that 
law  (you  continue)  some  of  the  most  distinguished  American  citizens 
have  earned  an  enviable  reputation,  and  it  is  difficult  to  suppose  the 
United  States  would  set  the  example  of  abrogating  its  most  sacred 
provisions.' 

"I  suppose  no  one  in  Europe  or  America  will  think  the  intended  force 
of  this  rebuke  mitigated  by  the  diplomatic  reservation  contained  in  the 
last  two  lines.    Let  us  then  inquire  for  a  moment  if  it  is  well  deserved. 

574 


CHAP.  III. J  "accretion,  NOT    COLONIZATION."  [§  72. 

"The  expeditions  to  which  you  iilhulo  as  calculated  to  excite  the 
'reprobation  of  every  civilized  state,'  were  discountenanced  by  the 
President  in  every  constitutional  and  legal  way.  The  utmost  vi;,Mlauce 
was  at  all  times  employed,  but,  unhappily  for  the  adventurers  them- 
selves, without  efl'ect.  In  this  there  is  matter  neither  for  wonder  nor 
reproach.  The  territory  of  the  United  States  is  but  little  less  tban  the 
whole  of  Europe;  while  their  population  is  not  quite  ecpial  to  that  of 
the  United  Kingdom,  and  their  standing  military  force  small  and  scat- 
tered over  an  immensely  extensive  frontier.  Our  Government,  like 
that  of  England,  is  one  of  law;  and  there  is  a  great  similarity  between 
the  laws  of  the  two  countries  which  prohibit  military  expeditions 
against  the  jiossessions  of  friendly  powers.  In  fact,  your  foreign  en- 
listment act  of  1819  was  admitted  by  i\Ir.  Canning  to  have  been 
founded  in  i)art  on  our  neutrality  law  of  the  preceding  year.  Of  the 
two,  1  believe  bur  laws  are  the  more  stringent;  but  it  is  somewhat 
difficult  to  enforce  them  in  both  countries. 

•'These  expeditions,  got  up  in  the  United  States  by  a  Sj)anish  general, 
and  sui)posed  to  indicate  a  lawless  disposition  on  the  part  of  the  Ameri- 
can people,  comprised  a  very  small  number  of  persons,  some  of  whom 
were  foreigners,  enjoying  the  same  freedom  of  action  in  the  United 
States  that  refugees  from  every  part  of  the  continent  enjoy  in  England. 
The  same  rei)roach  which  is  cast  upon  us  for  these  expeditions  is  at 
this  moment  cast  upon  England  by  the  continental  i)owers.  Events 
which  have  occurred  in  London  since  your  dispatch  was  written  strik- 
ingly illustrate  the  difficulty  and  the  risk,  under  constitutional  Govern- 
ments, of  preventing  abuses  of  that  hos])itality  which  it  is  the  privilege 
and  boast  of  such  Governments  to  extend  to  all  who  seek  it. 

"There  is,  no  doubt,  widely  jirevalent  in  this  country,  a  feeling 
that  the  people  of  Cuba  are  justly  disaliected  to  the  Government  of 
Spain.  A  recent  impartial  French  traveler,  M.  Ami)ere,  coLfirms  this 
impression.  All  the  ordinary  political  rights  enjoyed  in  free  countries 
are  denied  to  the  people  of  that  island.  The  Government  is,  in  princi- 
ple, the  worst  form  of  despotism,  namely,  absolute  authority  delegated 
to  a  military  viceroy,  and  supported  by  an  army  from  abroad.  1  si)eak 
of  the  nature  of  the  Government,  and  not  of  the  individuals  by  whom 
it  is  administered,  for  I  have  formed  a  very  favorable  opinion  of  the 
personal  character  of  the  present  captain-general,  as  of  one  or  two  of 
his  predecessors.  Of  the  bad  faith  and  the  utter  <lisregard  of  treaties 
with  which  this  bad  government  is  administered,  your  committees  on 
the  slave-trade  have  spoken  plainly  enough  at  the  late  session  of  Par- 
liament, Such  being  the  state  of  things  in  Cuba,  it  does  not  seem  to 
me  very  extraordinary  or  reproachful  that,  throughout  the  United 
States,  a  handful  of  misguided  young  men  should  be  found,  ready  to 
join  a  party  of  foreigners,  headed  by  a  Si)anisli  (General,  who  was  able 
to  persuade  them,  not  as  you  view  it,  'by  armed  invasion  to  excite  the 
obedient  to  revolt  and  the  tranquil  to  disturbance,'  but,  as  they  were 
led  to  believe,  to  aid  an  oj^pressed  people  in  their  struggle  for  freedom. 
There  is  no  reason  to  doubt  that  there  are,  at  this  moment,  as  many 
persons,  foreigners  as  well  as  natives,  in  England,  who  entertain  these 
feelings  and  opinions  as  in  the  United  States;  and  if  Great  Britain 
lay  at  a  distance  of  one  hundred  and  ten  miles  from  Cuba,  instead  of 
thirty-five  hundred,  you  might  not,  with  all  your  iei)res.sive  force,  find 
it  easy  to  prevent  a  small  steamer,  disguised  as  a  trading  vessel,  from 
slipping  off  from  an  outport  in  the  night  on  an  unlawful  enteriirise. 
The  expedition  of  General  Torrijos,  in  1831,  as  far  as  illegality  is  cou- 

575 


§  72.]  INTERVENTION.  [CHAP.  III. 

cerued,  is  the  parallel  of  that  of  General  Lopez.  It  was  fitted  out  in 
the  Thames,  without  inteivnption  till  the  last  moment,  and  though  it 
then  fell  under  the  grasp  of  tLie  i)oliee,  its  members  succeeded  in  escap- 
ing to  Sj)ain,  where,  for  sDuie  time,  they  found  shelter  at  Gibraltar.  It 
is  declared,  in  the  last  number  of  the  Quarterly  Review,  to  be  'notori- 
ous that  associations  have  been  formed  in  London  for  the  subversion 
of  dynasties  witli  which  England  is  at  peace;  that  arms  have  been  pur- 
chased and  loans  ])roposed ;.  that  "central  committees"  issue  orders 
from  England,  and  that  Slessrs.  Mazzini  and  Kossuth  have  established 
and  ])resideover  boards  of  regency  for  the  Koman  States  and  Hungary, 
and  for  the  i)romotion  of  revolution  in  ever^'  part  of  the  world.'  I  have 
before  me  a  list,  purporting  to  be  taken  from  a  Prussian  police  gazette, 
of  fifteen  associations  of  continental  refugees  organized  in  London,  and 
now  in  action,  for  the  above-mentioned  purposes. 

"When  these  things  are  considered,  the  fact  that,  in  the  course  of 
four  or  five  years,  two  inconsiderable  and  abortive  efiorts  have  been 
made  from  the  United  States,  though  deeply  to  be  lamented  and  sternly 
to  be  condemned,  as  a  violation  of  mnnicii)al  and  international  law,  does 
not  appear  to  me  so  'shocking'  as  it  seems  to  be  thought  by  you.  It 
does  not,  in  my  judgment,  furnish  any  ground  for  the  reproaches  it  has 
drawn  upon  the  Government  and  ])eople  of  the  United  States.  Nor  does 
the  remark  in  my  letter  of  the  1st  December,  that  a  disposition  to  engage 
in  such  enterprises  would  be  increased  rather  than  diminished  by  our 
accession  to  the  jiroposed  convention,  strike  me  as  '  a  melancholy  avowal,' 
as  you  pronounce  it,  on  the  part  of  the  President.  Yon  ibrget  the  class 
from  which  such  adventurers  are  in  all  countries  enlisted — the  young,  the 
reckless,  the  misinformed.  What  oth(  r  effect  could  be  expected  to  be 
produced  on  this  part  of  the  pojjulation  by  being  told  that  their  own 
Government,  in  disregard  of  the  most  obvious  public  interests  as  well 
as  of  the  most  cherished  historical  traditions,  had  entered  into  a  com- 
pact with  two  foreign  powers  to  guarantee  the  perpetuity  of  the  system 
under  which  Cuba  now  suffers!  Does  not  Lord  Howden,  the  English 
minister  at  Madrid,  make  a  very  similar  avowal  in  his  letter  of  the  oOth 
May  last,  addressed  to  the  Spanish  minister  of  foreign  affairs,  when  he 
says,  'I  cannot  conclude  without  expressing  my  deep  regret,  that  the 
course  of  Spain  is  such  as  to  produce  a  general  alienation  in  the  oi)in- 
ion  of  the  English  public,  out  of  which  will  most  infallibly  result  a  state 
of  feeling  ivhich  no  Government  can  control  or  oppose  f 

"The  idea  that  a  convention  like  that  i)roposed  was  a  measure  nat- 
urally called  for,  in  consequence  of  these  lawless  expeditions,  seems  to 
rest  upon  an  entire  misconception  of  the  present  state  of  the  law  in  the 
United  States,  and  of  our  treaty  relations  with  Spain.  Our  treaties 
with  that  Government  and  the  laws  of  the  United  States  forbid  all 
such  enterprises.  The  tripartite  convention  would  have  added  nothing 
to  their  unlawfulness.  If  we  had  been  desirous  of  multiplying  objec- 
tions, we  might  well  have  complained  that  the  acts  of  a  very  small 
number  of  rash  young  men,  citizens  and  foreigners,  should  be  put  for- 
ward by  two  of  the  leading  i)Owers  of  Europe,  as  the  main  reason  why 
we  should  be  expected  to  enter  into  a  sti'ange  compact  with  those  powers, 
binding  ourselves  never  to  make  a  lawful  aiul  honorable  acquisition  of 
Cuba.  There  is  no  logical  connection  between  the  ideas,  and  there  is 
something  bordering  upon  the  offensive  in  their  association. 

"Consider,  too,  the  recent  antecedents  of  the  powers  that  invite  us 
to  disable  ourselves  to  the  end  of  time  from  the  acquisition  in  any  way 
of  liiis  natural  appendage  to  our  continent.     France,  within  the  ])ast 

57<> 


CHAP.  III.]  "accretion,  NOT    COLONIZATION."  [§  72. 

ceutury,  to  say  nothing  of  tho  acquisition  of  Louisiana,  bas  wrested  a 
moiety  of  Europe  from  its  native  sovereigns;  lias  ])ossesse(l  herself,  by 
force  of  arms,  and  at  the  time  gieatly  to  the  dseontent  of  Hnghind,  of 
six  hundred  miles  of  the  northern  const  of  Africa,  with  an  indefinite 
extension  into  the  iiiterior;  and  has  ai>i)ropriated  to  hcisclf  one  of  the 
most  im])orrant  insular  groups  ol"  the  J'acihc.  England,  not  to  mention 
her  other  numerous  recent  aequisitions  in  every  part  of  the  globe,  has, 
even  since  your  dispatch  of  the  IGth  February  was  written,  annexed 
half  of  the  Burman  Emjjire  to  her  overgrown  Indian  possessions,  on 
grounds — if  the  statements  in  Mr.  Cobden's  ])amphlet  are  to  be  relied 
on — comi)ared  with  which  the  reasons  assigned  by  llussia  for  invading 
Turkey  are  respectable. 

"The  United  States  do  not  require  to  be  advised  of  'the  utility  of 
those  rules  for  the  observance  of  international  relations  which  for  cen- 
turies have  been  known  to  Europe  by  the  name  of  the  law  of  nations.' 
They  are  known  and  obe.'.ed  by  us  under  the  same  venerable  name. 
Certain  circumstances  in  our  history  have  caused  them  to  be  studied 
more  generally  and  more  anxiously  here  than  in  Euro])e.  From  the 
breaking  out  of  the  wars  of  the  French  revolution  to  the  year  1812, 
the  United  States  knew  the  law  of  nations  only  as  the  victims  of  its 
systematic  violation  by  the  great  maritime  powers  of  Euro])e.  For 
these  violation  on  the  part  of  England,  i)rior  to  1794,  indemnification 
was  made  under  the  seventh  article  of  Jay's  treaty.  For  similar  injur- 
ies on  the  pait  of  France,  we  were  comjielled  to  accept  an  illusory  set- 
off uiuler  the  convention  of  1800.  A  lew  years  only  ela])sed  before  a 
new  warfare  upon  our  neutral  rights  was  commenced  by  the  two  powers. 
One  hundred  millions  at  least  of  American  |)roperty  were  swe])t  from 
the  seas,  under  British  orders  in  council,  and  the  French,  Berlin,  and 
Milan  decrees.  These  orders  and  decrees  were  at  the  time  reciprocally 
declared  to  be  in  contravention  of  the  law  of  nations  by  the  two  powers 
themselves,  each  speaking  of  the  measures  of  the  other  party.  In  1831, 
after  the  generation  of  the  original  sufferers  had  sunk  under  their  ruined 
fortunes  to  the  grave,  France  acknowledged  her  decrees  to  have  been 
of  that  character  by  a  late  and  pat  tial  measure  of  indemnification.  For 
our  enormous  losses  under  the  British  orders  in  council,  we  not  only 
never  leceived  indemnifi<'-ation,  but  the  sacrifices  and  sufferings  of  war 
were  added  to  these  spoliations  on  our  commerce  and  invasion  of  our 
neutral  rights  which  led  to  its  declaration.  Those  orders  were  at  the 
time  regarded  by  the  Lansdownes,  the  Barings,  the  Broughams,  and 
the  other  enlightened  statesmen  of  the  school  to  which  you  behmg  as 
a  violation  of  right  and  justice  as  well  as  sound  i)olicy;  and  within  a 
very  few  years  the  ])resent  distinguished  lord  chief  justi(X',  jilaced  by 
yourself  at  the  head  ot  the  tribunals  of  England,  has  declared  that 
'<the  orders  in  council  were  grievously  unjust  to  neutrals,  and  it  is  now 
gener  all  II  all  Diced  that  they  were  contrary  to  the  law  of  nations  and  our 
own  municijHil  law!^ 

"That  I  call,  my  lord,  to  borrow  your  expression,  'a  melancholy 
avowal'  for  the  chief  of  the  jurisprudence  of  a  great  Empire,  though 
highly  creditable  for  the  candor  with  which  it  is  nuide.  Acts  of  its 
sovereign  authority,  countenanced  by  its  Parliament,  rigidly  executed 
by  its  tleets  on  every  sea,  enforced  in  the  eourts  of  admiralty  by  a  magis- 
trate whose  learning  and  eloquen(!e  are  among  the  modem  glories  of 
England,  persisted  in  till  the  lawful  eommerce  of  a  neutral  and  kindred 
nation  was  annihilated,  and  pronounced  by  the  highest  legal  authoritj 

S.  Mis.  1G2— VOL.  I 37  ^'^'^ 


§  72.]  '         INTERVENTION.  [CIIAV.  III. 

<)f  the  pivsc'iit  (l;iy  coiitiary,  not  merely  to  the  law  of  natious,  but  your 
own  municipal  hiw ! 

"Under  these  circumstances,  the  Government  and  i)eo])le  of  the 
United  States,  who  have  never  committed  or  sanctioned  a  violation  of 
the  law  of  nations  ajjainst  any  other  ]>ower,  may  well  think  it  out  of 
])lace  that  they  should  be  instructed  by  an  English  minister  in  'the 
utility  of  those  rules  which  for  centuries  have  been  known  to  Europe 
by  the  name  of  the  law  of  nations.' 

"There  are  several  other  i)oints  in  your  dispatch,  some  of  great  pub- 
lic moment,  which,  if  I  were  still  in  office,  I  should  discuss  on  this  oc- 
casion. I  have,  however,  deemed  it  proper,  at  ])resent,  to  confine  myself 
to  such  remarks  as  seemed  necessary  to  vindicate  my  letter  of  the  1st 
December  from  your  strictures,  leaving  the  new  asj)ects  of  the  case 
which  your  dispatch  presents,  especially  in  its  opening  and  closing 
paragraphs,  to  those  whose  official  duty  it  is  to  consider  them. 

"You  will  not,  I  hope,  misaj^prehend  the  spirit  in  which  this  letter 
is  written.  As  an  American  citizen,  I  do  not  covet  the  acquisition  of 
Cuba,  either  peaceably  or  by  force  of  arms.  When  I  cast  my  thoughts 
back  upon  our  brief  history  as  a  nation,  I  certainly  am  not  led  to  think 
that  the  United  States  have  reached  the  final  limits  of  their  growth, 
or,  what  comes  to  very  much  the  same  thing,  that  rejireseutative  gov- 
ernment, religious  equality,  the  trial  by  jury,  the  freedom  of  the  press, 
and  the  other  great  attributes  of  our  Anglo-Norman  civilization  are 
never  to  gain  a  further  extension  in  this  hemisphere.  I  regard  the  in- 
<iuiry  under  what  political  organization  this  extension  is  to  take  j)lace, 
as  a  vain  attempt  to  i^enetrate  the  inscrutable  mysteries  of  the  future. 
It  will,  if  we  are  wise,  be  under  the  guidance  of  our  example.  I  hope 
it  will  be  in  virtue  of  the  peaceful  arts  by  which  well-governed  states 
extend  themselves  over  unsettled  or  ])artially  settled  continents.  My 
voice  was  heard,  at  the  first  opportunity,  in  the  Senate  of  the  United 
States,  in  favor  of  developing  the  almost  boundless  resources  of  the 
territory  already  in  our  possession,  rather  than  seeking  to  enlarge  it 
by  aggressive  wars.  Still  1  cannot  think  it  reasonable — hardly  respect- 
ful— on  the  part  of  England  and  France,  while  they  are  daily  extend- 
ing themselves  on  every  shore  and  in  every  sea,  and  pushing  their  do- 
minions, by  new  conquests,  to  the  uttermost  ends  of  the  earth,  to  call 
upon  the  Uuited  States  to  bind  themselves,  by  a  perpetual  compact, 
never,  under  any  circumstances,  to  admit  into  the  Union  an  island 
which  lies  at  their  doors,  and  commands  the  entrance  into  the  interior 
of  their  continent."  ^ 

Mr.  Everett  to  Lord  John  Russell,  Boston,  Sept.  17,  1853,  Pamph.  Ed.     See  re- 
view by  Mr.  Trescot,  iu  9  South.  Quar.  Rev.,  N.  S.,  Apr.,  1854,  429. 

On  July  2,  186(5,  the  chairman  of  the  Committee  on  Foreign  Affairs 
in  the  House  of  Eepresentatives  reported  a  bill  to  the  eflect,  that  when 
the  De|)artment  of  State  should  be  officially  informed  that  Great  Brit- 
ain and  the  several  British  provinces  in  Canada  accepted  the  proposi- 
tion of  annexation,  the  President  shall  declare  by  i)roclamatiou  that 
Nova  Scotia,  New  Brunswick,  Lower  Canada,  Upper  Canada,  and  the 
territories  of  Selkirk,  of  Sasketchewan,  an<l  of  Columbia  should  be 
admitted  into  tiie  United  States  as  States  and  Teiritories.  (Anier.  Ann. 
Encyclop.,  18(j(),  78.)  This  resolution  was  not  acted  on,  but  on  Maich  27, 
18C7,  a  resolution  from  the  Committee  on  Foreign  Affairs  was  i)assed 
in  the  House  without  opposition,  to  the  effect  that  the  people  of  the 

578 


CHAP.  III.]  ''accretion,  NOT    COLONIZATION."  [§  72. 

United  States  regarded  with  extreme  solicitude  the  confederation  i)ro- 
posed  on  the  northern  frontier  without  tlie  assent  of  the  i)eoi)h'  of  the 
provinces  to  be  confederated,  such  a  measure  being-  likely  to  increase 
the  embarrassment  already  existing  between  Great  Britain  and  the 
United  States. 

Aiiier.  Anu.  Encyclop.,  1807,  27;").     2  Lawrence  Com.  siir  droit  int.,  ^13. 

It  is  not  the  policy  of  the  United  States  to  undertake  in  Africa  the 
management  of  movements  within  the  particular  range  of  private  enter- 
prise. 

Mr.  Fish,  Sec.  of  State,  to  Sir  E.  Thornton,  Apr.  8,  1873.    MSS.  Notes,  Gr.  Brit. 

"The  policy  of  this  Government,  as  declared  on  many  occasions  in 
the  past,  has  tended  toward  avoidance  of  possessions  disconnected 
from  the  main  continent.  Had  the  tendency  of  the  United  States  been 
to  extend  territorial  dominion  beyond  intervening  seas,  opportunities 
have  not  been  wanting  to  effect  such  a  purpose,  whether  on  the  coast 
of  Africa,  in  the  West  Indies,  or  in  the  South  Pacific.  No  such  oppor- 
tunity has  been  hitherto  embraced,  and  but  little  hope  could  be  offered 
that  Congress,  which  must  in  the  ultimate  resort  be  brought  to  decide 
the  question  of  such  transmarine  jurisdiction,  would  favorably  regard 
such  an  acquisition  as  His  Excellency  proposes.  At  any  rate,  in  its 
political  aspect  merely,  this  Government  is  unprepared  to  accept  the 
proposition  without  subjection  to  such  wishes  as  Congress  and  the 
people  of  the  United  States  through  Congress  may  see  fit  to  express." 

Mr.  Frellnghnysen,  Sec.  of  State,  to  Mr.  Langston,  June  20,  1883.     MSS.  Inst., 
Hayti. 

"A  conviction  that  a  fixed  policy,  dating  back  to  the  origin  of  our 
constitutional  Government,  was  considered  to  make  it  inexpedient  to 
attempt  territorial  aggrandizement  which  would  require  maintenance 
by  a  naval  force  in  excess  of  any  yet  provided  for  our  national  uses, 
has  led  this  Government  to  decline  territorial  acquisitions.  Even  as 
simple  coaling  stations,  such  territorial  acquisitions  would  involve 
responsibility  beyond  their  utility.  The  United  States  have  never 
deemed  it  needful  to  their  national  life  to  maintain  impregnable  for- 
tresses along  the  world's  highways  of  commerce.  To  considerations 
such  as  these  prevailing  in  Congress  the  failure  of  the  Samana  lease 
and  the  St.  Thomas  purchase  were  doubtless  due.  During  the  years 
that  have  since  elai)sed  there  has  been  no  evidence  of  a  change  in  the 
views  of  the  national  legislature  which  would  warrant  the  President  in 
setting  on  foot  new  projects  of  the  same  character." 

Mr.  Fri'linghnysen,  Sec.  of  State,  to  Mr.  Langston,  Feb.   I,  1884.     MSS.  In8t., 
Hayti. 

The  proposed  annexation  of  San  Domingo  is  discussed,  .«i/pra,  §6Ij 
that  of  St.  Thomas,  supra,,  §6 la. 

579 


§  72.]  INTERVENTION.  [CHAP.  III. 

"The  policy  of  the  United  States,  declared  and  pursued  for  more 
than  a  century,  discountenances  and  in  practice  forbids  distant  colonial 
acquisitions.  Our  action  in  the  past  touching  the  acquisition  of  terri- 
tory by  purchase  and  cession,  and  our  recorded  disinclination  to  avail 
ourselves  of  voluntary  proffers  made  by  other  i)Owers  to  place  territo- 
ries under  the  sov'ereiguty  or  protection  of  the  United  States,  are  mat- 
ters of  historical  prominence." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Peudletou,  Sept.  7,  1885.     MSS.  Inst.,  Germ. 

"  Maintaining,  as  1  do,  the  tenets  of  a  line  of  precedents  from  Wash- 
ington's day,  which  proscribe  entangling  alliances  with  foreign  states, 
I  do  not  favor  a  policy  of  acquisition  of  new  and  distant  territory,  or 
the  incorporation  of  remote  interests  with  our  own." 
President  Cleveland,  First  Annual  Jlessage,  1885. 
680 


CHAPTER  IV. 


DIPLOMATIC  AGENTS. 


I.    Executive  the  source  of  diplomatic  authority,  $  78. 
II.    Foreign   ministers  to   recognize  the   Secretary  of   State  as  the 
sole  organ  of  the  Executive,  $  79. 

III.  Continuity  of  forkign  relations   not  broken  by  party  changes, 

$  80. 

IV.  Executive  discretion  determines  the  withdrawal  or  rkmoval  of 

missions  and  ministers,  $  81. 
V.    NoN- acceptable  minister  may  be  refused,  §  82. 
VI.    Not  usual  to  ask  as  to  acceptability  in  advance,  $  82a. 
VII.    Conditions  derogatory  to  the  accrediting  Government  cannot  bk 

IMPOSED,   $   dii. 

VIII.     Minister  misconducting  himself  may  be  sent  back,  $  84.    • 
IX.    Mode  of  presentation  and  taking  leave,  $  65. 
X.     Incumbent  continues  until  arrival  of  successor,  $  86. 

XI.      How    FAR     DOMESTIC    CHANGE     OF   GOVERNMENT    OPERATES     TO     RECALL, 

$  87. 
XII.     Diplomatic  grades,  §  68. 

XIII.  Citizens  of  country  of  reception  nc)T  acceptable,  $  88o. 

XIV.  Diplomatic  correspondence  confidential,  except  by  order  of  De- 

partment, §  89. 

(1)  Confined  to  official  business,  ^  89a. 

(2)  Usually  in  -writing,  §  89b. 

XV.    Diplomatic  agents  to  act  under  instructions,  $  90. 
XVI.     Communications  from  foreigners  only  to  be  received  through 

diplomatic  representatives,  $91. 
XVII.     Diplomatic  agents  protected  from  process. 

(1)  Who  are  so  privileged,  $  92. 

(2)  Illegality  of  process  against,  $  93. 

(3)  Exemption  from  criminal  prosecution,  $  93a. 

(4)  What  attack  on  a  minister  is  an  international  ofiFense,  $  936. 
XVIII.     And  from  personal  indignity,  §  94. 

XIX.  And  from  taxes  and  imposts,  $  95. 

XX.  Property  protected,  ^  96. 

XXI.  Free  transit  and  communication  with,  secured,  ^  97. 

XXII.  Privileged  from  testifying,  $  98. 

XXIII.  Cannot  become  business  agents,  $  99. 

XXIV.  Nor  represent  foreign  Governments,  ft  100. 
XXV.  Should  reside  at  capital,  ft  101.. 

XXVI.    Joint  action  with  other  diplomatic  agents  unadvisable,  }  102. 
XXVII.    Duties  as  to  archives,  $  103. 
XXVIII.    Eight  of  protection  and  asylum,  ft  104. 
XXIX.    May  extend  protection  to  citizens  of  friendly  countries,  $  105. 
XXX.    Avoidance  of  political  interference  enjoined,  $  106. 

581 


§  78.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

XXXI.      COUUTKSY,    FAIRNESS,    AND   SOCIAL   CONFORMITY   EXPECTED. 

(I)  OtBcial  intercourse,  §  107. 
{1}  Social  intercourse,  $  107a. 
(."i)  Court  dress,  $  1076. 
(4)  Expenses,  ^  107c. 

XXXII.  Contingent  fund  and  secret-service  money,  ^  108. 

XXXIII.  Self-constituted  missions  illegal,  ^  109. 

XXXIV.  Presents  not  allowaule,  ^  110. 

I.  EXECUTIVE,  THE  SOURCE  OF  DIPLOMATIC  AUTROEITY. 

§  78. 

"A  motion  bad  been  made  in  the  Senate  on  the  5tb  of  August,  1789, 
'that  it  is  the  opinion  of  the  Senate  that  their  advice  and  consent  to 
the  appointment  of  officers  should  be  given  in  the  presence  of  the 
President.'  This  motion  was  postponed  till  the  next  day,  when  it  was 
ordered  'that  Mr.  Izard,  Mr.  King,  and  Mr.  Carroll  be  a  committee  to 
wait  on  the  President  of  the  United  States,  and  confer  with  him  on  the 
mode  of  communication  proper  to  be  pursued  between  him  and  the 
Senate  in  the  formation  of  treaties  and  making  appointments  to  offices.' 
The  committee  accordingly  waited  on  the  President,  and  had  the  con- 
ference mentioned  in  the  above  letter.  It  does  not  appear,  however, 
that  the  plan  of  communicating  nominations  orally  was  adoj^ted  in  any 
instance,  or  that  the  President  was  ever  present  when  they  were  con- 
sidered by  the  Senate.     (See  appendix  No.  V.) 

"  In  regard  to  treaties,  a  practice  was  at  first  begun  which  was  not 
pursued.  On  the  21st  of  August,  1780,  the  following  message  was  sent 
to  the  Senate,  'The  President  of  the  United  States  will  meet  the  Sen- 
ate in  the  Senate  Chamber  at  half  past  11  o'clock  to-morrow,  to  advise 
with  them  on  the  terms  of  the  treaty  to  be  negotiated  with  the  south- 
ern Indians.'  He  accordingly  took  his  seat  in  the  Senate,  attended  by 
General  Knox,  the  Secretary  of  War,  for  two  days  in  succession,  when 
the  outlines  of  a  treaty  proposed  by  the  Secretary  were  discussed.  But 
this  practice,  being  found  inconvenient  and  subject  to  various  objections, 
particularly  in  regard  to  treaties  with  foreign  powers,  was  soon  discon- 
tinued.    (Story's  Commentaries,  vol.  iii,  p.  371.)" 

10  Washington's  Writings,  25.     Note  by  Sparks. 

'' The  Constitution  having  declared  that  the  President  shall  nominate 
and,  by  and  with  the  advice  and  consent  of  the  Senate,  shall  appoint 
embassadors,  other  public  ministers,  and  consuls,  the  President  desired 
my  opinion  whether  the  Senate  has  a  right  to  negative  the  grade  he  may 
think  it  expedient  to  use  in  a  foreign  mission,  as  well  as  the  person  to  be 
appointed. 

"  I  think  the  Senate  has  no  right  to  negative  the  grade.^'' 

Opinion  of  Mr.  Jefterson,  Apr.  24,  1790.     7  Jeff.  Works,  4G5. 

President  Washington's  message  to  the  Senate  of  February  18, 1791, 
relative  to  the  institution  of  a  mission  to  Portugal,  and  nominating  Mr. 
Humphreys  thereto,  will  be  found  in  1  Am.  State  Papers,  (For.  Kel.)  127. 

President  John  Adams's  actioi;,  in  sending,  on  February  18,  1798, 
without  consulting  his  Cabinet,  the  nomination  of  Mr.  William  Vans 
Murray  to  the  Senate,  is  told  in  1  Schouler's  Historv  of  the  United 
States,  430. 

582 


CHAP.  IV.]  AUTHORITY    COMES    FK'OM    KXKCUTIVK.  [§  7H. 

On  Maicli  24,  1<S18,  Avlien  tlu'  <li|)l()ii);it  ic  nppiopiialioii  bill  caiiK-  up 
before  the  lloi'.se  of  Iiepi-escnratix cs.  Mr.  Clay  took  exception  to  the 
insertion  in  it  of  thirty  thousand  dolhirs  tor  the  payment  of  certain 
si)ecial  conjuiissioners  sent  by  the  Piesident  on  a  mission  of  nr.i^ency 
to  the  South  American  states.  lie  insisted  that  if  these  commissioners 
were  <lii)lomatic  aii<'nts,  their  nomination  siioidd  have  been  sent  to  the 
Senate  and  by  the  Senate  contirmed.  Tiie  ol)jcciion,  l.owever,  was  met 
by  plaeino-  the  ap])ropriation  under  tlie  head  of  incidental  ex])eu8es. 
(See  as  to  other  details  of  this  mission,  stipra,  §  47.) 

lu  President  Monroe's  Cabinet,  on  January  2,  1820,  the  quesiiou  of 
sending  ministers  to  the  new  South  American  states  coming-  u]»,  Mr,  J.  Q. 
Adams  argued  that  "it  is  not  consistent  with  our  national  dignity  to  be 
the  first  in  sending  a  minister  to  a  new  power.  It  had  not  been  done  by 
any  European  power  to  ourselves."  But  receiving  ministers  "  was,  by 
our  Constitution,  an  act  of  the  Executive's  authority.  Ceneral  Wash- 
ington had  exercised  it  in  recognizing  the  Erencdi  Eepublic  by  the 
reception  of  Mr.  Genest  [Genet].  Mr.  Madison  had  exeicised  it  by 
declining  several  years  to  receive,  and  by  tinally  receiving,  Mr.  Ouis." 

4  J.  Q.  Adams'  Mem.,  206. 

Concurrence  by  the  Executive  alone  in  the  establishment  of  permanent 
international  courts  for  the  adjudication  of  questions  arising  out  of  the 
slave-trade,  is  not  compatible  with  the  limitations  of  the  Constitution 
of  the  United  States. 

Mr.   Adams,    Sec.  of  State,    to  Mr.  Stratford  Canuing,  Dec.  30,  1820.      MSS. 
Notes,  For.  Leg. 

"It  appears  that  the  Senate  have  been  discussing  the  precedents 
relating  to  the  appointment  of  public  ministers.  One  question  is 
whether  a  public  minister  be  an  officer  in  the  strict  constitutional  sense. 
If  he  is,  the  appointment  of  him  must  be  authorized  by  law,  not  by  the 
President  and  Senate.  If,  on  the  other  hand,  the  appointn)ent  creates  the 
office,  the  office  must  expire  with  the  appointment,  as  an  office  created 
by  law  exi>ires  with  the  law;  and  there  can  be  no  difference  between 
courts  to  which  a  public  minister  has  been  sent,  and  those  to  which  one 
was  sent  for  the  first  time.  According  to  my  recollection  this  subject 
was  on  some  occasions  carefully  searched  into,  and  it  was  found  that 
the  practice  of  the  Government  had  from  the  beginning  been  regulated 
by  the  idea  that  the  places  or  offices  of  public  ministers  and  consuls 
existed  under  the  law  and  usages  of  nations,  and  were  always  open  to 
receive  appointments  as  they  might  be  made  under  competent  authori- 
ties." 

Mr.  Madison  to  Mr.  Monroe,  President,  May  6,  1822.     MSS.  Monroe  Pap.,  Dept. 
of  State.     3  Madison's  Writings,  268. 

The  question  of  the  right  of  the  Senate  to  require,  in  reference  to 
diplomatic  nominations,  documents  which  the  Executive  holds  it  incon- 
sistent with  public  policy  to  disclose,  was  presented  in  various  shapes 
in  the  proceedings  of  the  Senate  in  182G  in  reference  to  the  Panama 
mission.  (See  Sen.  Doc.  No.  423,  19th  Cong.,  1st  sess.;  5  Am.  State 
Pai .  (For.  Eel.),  834-870.)  The  same  question  was  acted  on  on  the  first 
session  ofthe  Forty  ninth  Congress,  (188G)  President  Cleveland  declining 
to  acknowledge  the  Senate's  right  to  require  such  production. 

As  to  duties  and  need  of  U.  S.  ministers  to  foreign  countries,  see  7  John  Adams's 
Worlis,  208,  257,  263,  317 ;  8  ihid.,  37,  96,  150,  381,  499  ;  9  ibid.,  513,  521. 

583 


§  78.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

A  re])ort  b.v  Mr.  Patterson,  of  New  IlaniiKsliire,  on  the  character  of 
our  foreiii'n  servi(;e,  made  July  li,  1808,  is  si^'t'ii  in  Senate  liep.  Com. 
No.  154,  4otli  Con  J?.,  2d  sess. 

That  representatives  of  this  Government  mnst  be  citizens  of  the  United 
States,  see  infra,  §  113. 

The  proceedings  connected  with  the  appointment,  in  1847,  of  Mr.  Trist, 
as  contidential  agent  to  Mexico,  are  given,  infra,  §  154. 

In  October,  1861,  Mr.  Seward,  with  the  approval  of  the  President  and 
the  Cabinet,  determined  to  send  to  Europe,  as  a  confidential  but  secret 
mission,  for  the  i)nrpose  of  acting,  so  far  as  possible,  on  public  senti- 
ment in  respect  to  the  then  civil  war,  certain  eminent  citizens  who,  how- 
ever, were  to  receive  no  compensation  beyond  payment  of  their  ex- 
penses, and  were  not  to  deal  distinctively  with  any  foreign  Govern- 
ment, nor  to  assume  in  any  way  diplomatic  functions.  The  gehtlemeu 
selected  for  the  puri)ose  were  Archbishop  Hughes,  Bishop  McIlvaine,Mr. 
Everett,  Mr.  Winthrop,  and  Mr.  J.  P.  Kennedy.  The  two  first  named  pro- 
ceeded at  once  on  the  mission.  The  otliers  were  ready  to  follow,  if  this 
was  thought  necessary  by  the  Government,  asking  for  a  few  days'  delay 
for  ])reparation.  In  the  mean  time,  more  favorable  advices  from  Eng- 
land having  arrived,  they  were  relieved  by  Mr.  Seward  from  the  duty. 
Archbishop  Hughes  and  Bishop  Mcllvaine,  however,  entered  on  the 
service,  though  no  letters  to  or  from  them  are  on  tile  in  the  State  De- 
partment, nor  is  any  record  of  their  appointment  there  to  be  found. 

See  Thuriow  Weed's  Autobiography,  634  ;  and  fuller  statement  as  to  details, 
in  4  Wiuthrop's  Addresses,  &,e.,  500. 

The  Seci'etary  of  State  has  no  power  to  appoint  a  commission  to  de- 
termine how  much  money  a  foreign  prince  shall  pay  to  counsel  in  the 
United  States  for  professioual  services. 

6  Op.,  386,  Gushing,  1854. 

The  President,  under  the  Constitution,  has  power  to  appoint  diplo- 
matic agents  of  any  rank,  at  any  place,  and  at  any  time,  subject  to  the 
constitutional  limitations  in  respect  to  the  Senate.  The  authority  to 
make  such  appointments  is  not  derived  from,  and  cannot  be  limited  by, 
any  act  of  Congress,  except  in  so  far  as  appropriations  of  money  are 
required  to  provide  for  the  expenses  of  this  branch  of  the  public  service* 
During  the  early  administrations  of  the  Government,  the  appropriations 
made  for  the  expenses  of  foreign  intercourse  vrere  to  be  expended  in 
the  discretion  of  the  President,  and  from  this  general  fund  ministers 
whom  the  President  saw  fit  to  name  were  iiaid.  Congress,  in  any  view, 
cannot  require  that  the  President  shall  make  removals  or  reappoint- 
ments or  new  appointments  of  public  ministers  at  a  particular  time, 
nor  that  he  siiall  aj)point  or  maintain  ministers  of  a  prescribed  rank,  at 
particular  courts.  It  was  therefore  held  that  where  the  act  of  1855  (10 
Stat.,  619)  declared  that  from  and  after  the  end  of  the  present  fiscal  year 
the  President  shall  appoint  envoys,  &c.,  this  was  not  to  be  construed 
to  mean  that  the  President  was  required  to  make  any  such  appointments, 
584 


CHAP.  IV.]  SECRETARY    OF    STATE    THE    ORGAN.  [§  79. 

but  only  to  determine  what  .slionld  be  the  salaries  of  tbe  oflBcers  iu  case 
they  have  been  or  shall  be  appointed. 

7  Op.  18G  (CnKbiii<,0,  18r)r). 

As  to  power  of  appoiutniciit   in   \>hu-v  of  Husiit'iided  <lipli)in:ific  a^cnt.s,  under 
tenure  of  office  act,  see  Revised  Statutes,  $§  llGl  ff. 

Spanish  viceroj^s,  governors,  and  captains-general  have  geneially 
been  invested  with  the^'ws  Ugatlonis. 

Si 

7  Op.,  551,  Cushlug,  1855, 

II.  FOREIGN  MINISTERS  TO  RECOGNIZE  THE  SECRETARY  OF  STATE  AS 
SOLE  ORGAN  OF  THE  EXECUTIVE. 

§  79. 

"  There  is  no  maxim  more  clearly  settled  in  all  courts,  and  in  all  ne- 
gotiations between  nations,  than  that  sovereign  should  always  speak  to 
sovereign  and  minister  to  n)inister.  I  am  not  at  all  surprised,  there- 
fore, although  1  am  much  mortilied,  at  having  my  memorials  to  their 
High  Mightinesses,  and  to  His  Most  Serene  Highness,  returned  to  me, 
with  the  letter  inclosed  from  Mr.  Fagel.  1  should  have  had  a  letter  of 
recall,  signed  by  the  President  of  Congress,  by  their  order,  and  ad- 
dressed to  their  High  Mightinesses.  There  is  a  similar  irregularity  in 
my  recall  from  the  British  court;  for,  although  my  commission  is  lim- 
ited to  three  years,  yet  my  letter  of  credence  to  His  Ma  jest  j  has  no 
limits  at  all.  \i  the  omission  of  a  letter  from  Congress  to  the  King, 
upon  this  occasion,  should  not  be  taken  as  an  oflense,  it  will  not  be  be- 
cause it  is  not  observed,  but  from  motives  too  humiliating  to  Congress, 
as  well  as  their  minister  here,  to  be  explained." 

Mr.  Adams  to  Mr.  Jay,  Feb.  16,  1788.     8  John  Adams'  Works,  47?*. 

"Minutes  of  a  conversation  between  Mr.  Jefferson,  Secretary  of 
State,  and  M.  Genet : 

"July  10,  1793. 

*  *  *  "  He  asked  if  they  (Congress)  were  not  the  sovereign.  1  told 
him  no,  they  were  sovereign  in  making  laws  only,  the  Executive  was 
sovereign  in  executing  them,  and  the  judiciary  in  construing  them 
where  they  related  to  their  department.  '  But,'  said  he,  '  at  least  Con- 
gress are  bound  to  see  that  the  treaties  are  observed.'  I  told  him  no; 
there  were  very  few  cases,  indeed,  arising  out  of  treaties  which  they 
could  take  notice  of;  that  the  President  is  to  see  that  treaties  are  ob- 
served. '  If  he  decides  against  the  treaty,  to  whom  is  a  nation  to  ap- 
peal?' I  told  him  the  Constitution  had  made  the  Presi«lent  the  last 
appeal.  He  made  me  a  bow,  and  said  that  indeed  he  would  not  make 
me  his  compliments  on  such  a  Constitution,  expressed  the  utmost  aston- 
ishment at  it,  and  seemed  never  before  to  liave  had  such  an  idea. 

"  He  was  now  come  into  perfect  good  humor  and  coolness,  in  which 
state  he  may  with  the  greatest  freedom  be  spoken  with.  I  observed  to 
him  the  imi)ropriety  of  his  conduct  in  persevering  in  measures  contrary 
to  the  will  of  the  Government,  and  that  too  within  its  limits,  wherein 
unquestionably  they  had  a  right  to  be  obeyed.  '  But,'  said  he, '  1  have 
a  right  to  expound  the  treaty  on  our  side.'  '  Certainly,'  said  I,  'each 
party  has  an  equal  right  to  expound  their  treaties.  You,  as  the  agent 
of  your  nation,  have  a  right  to  bring  forward  your  exposition,  to  sup- 

685 


^  79.J  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

port  it  by  reasons,  to  insist  on  it,  to  be  answered  with  the  reasons  for 
our  exposition  where  it  is  contrary  ;  bnt  when,  after  hearinj?  and  con- 
sidering yonr  reasons,  the  highest  authority  in  the  nation  has  decided, 
it  is  your  duty  to  say  you  think  the  decision  wrong,  tliat  you  cannot 
take  upon  yourself  to  admit  it,  and  will  represent  it  to  your  Govern- 
ment to  do* as  they  think  proper  ;  but,  in  the  mean  time,  you  ought  to 
acquiesce  in  it,  and  to  do  nothing  within  our  limits  contrary  to  it.'" 

10  Washington's  Writings,  5o7. 

"He  (the  President)  being  the  only  channel  of  communication  be- 
tween the  country  and  foreign  nations,  it  is  from  him  alone  that  foreign 
nations  or  their  agents  are  to  learn  what  is  or  has  been  the  will  of  the 
nation,  and  whatever  he  communicates  as  such  they  have  a  right  and 
are  bound  to  consider  as  the  expression  of  the  nation  ;  and  no  foreign 
nation  can  be  allowed  to  question  it,  (nor)  to  interpose  between  him 
and  any  branch  of  goverument,  under  the  pretense  of  either's  trans- 
gressing their  functions,  nor  to  make  himself  the  nmpire  and  final  judge 
between  them." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Genet,  Nov.  22,  1793;  1  Waite's  St.  Pap., 
198;  1  Am.  St.  Pap.  (For.  Eel.),  184. 

"A  foreign  minister  has  a  right  to  remonstrate  with  the  executive  to 
whom  he  is  accredited,  upon  any  of  those  measures  afiecting  his  coun- 
try. But  it  will  ever  be  denied  as  a  right  of  a  foreign  minister,  that  he 
should  endeavor,  by  an  address  to  the  people,  oral  or  written,  to  fore- 
stall a  depending  measure,  or  to  defeat  one  which  has  been  decided." 
Mr.  Eandolph,  Sec.  of  State,  to  Mr.  Fauchet,  June  13,  1795.  MSS.  Notes,  For, 
Leg. 

That  it  is  an  impropriety  for  foreign  ministers  to  publish  criticisms 
on  the  Government  to  which  they  are  accredited,  see  1  J.  Q.  Adams 
Memoirs,  410. 

A  foreign  minister  has  no  right  to  take  official  notice  of  informal 
remarks  made  by  the  President  at  one  of  his  "  drawing-rooms." 

"  What  right  had  Mr.  Onis  to  speak  upon  this  matter  to  the  Presi- 
dent at  the  drawing-room  at  all  ?  He  was  treating  with  me.  I  bad 
sent  him  a  copy  of  my  full  powers,  and  received  the  copy  of  his.  The 
Secretary  of  State  was  the  officer  with  whom  the  negotiation  was  to 
be  conducted,  and  all  applications  to  the  President  by  Mr.  Onis  con- 
cerning it  were  improper." 

4  J.  Q.  Adams  Mem.,  269. 

Even  though  the  Globe,  as  published  during  the  administration  of 
President  Jackson,  should  be  regarded  as  a  government  paper,  the  Gov- 
ernment "  is  and  can  be  from  the  nature  of  our  institutions  only  answer- 
able for  official  articles  ;  on  all  the  rest  the  Globe  is  as  independent  of  the 
Executive  as  any  other  gazette."  Hence,  the  Government,  as  such, 
cannot  be  properly  called  on  by  Russia  to  explain  the  insertion  of  ar- 
ticles in  the  Globe  injurious  to  Russia  in  relation  to  Poland,  or  the  pub- 

586 


CHAP.  IV.]  SECRETARY    OF    STATE    THE    ORGAN.  [v^  7M. 

licatioii  of  wiiaf  liussia  may  consider  iuaecuiatc  and  unjust  reports  from 
France  or  Eni;Iand  of  Russian  affairs. 

Mr.   Liviii<;ston,   Sec.   of  Stato,  to  Mr.   Biicliaiiiiii,  .Jan.  2,  1H33.     MS8.  Inst., 
Russia.     See  also  1  Curtis'  Buchanan,  175. 

"Tlie  first  rejection  produced  by  Mr.  Serurier's  note  i.s  that  it  liriuj^'s* 
into  discussion  the  propriety  of  a  message  of  the  President  to  Conj,^ress, 
for  the  contents  of  which,  until  the  recommendations  it  contains  are 
adopted  by  Congress,  the  United  States  are  not  resi)onsible  to  for('i<;n 
Governments.  If,  in  the  i)erfornmnce  of  his  constitutional  (hity,  the 
President  had  recommended  a  declaration  of  war  apiinst  France,  it  is 
to  be  presumed  that  France  would  not  have  madb  war  upon  the  United 
States,  until  Congress,  to  whom  exclusively  belongs  the  ])()wer,  had 
decided  to  declare  war  against  her,  and  however  prudence  would  have 
required  a  preparation,  or  even  action,  on  her  part,  the  French  Govern- 
ment would  scarcely  have  expected  to  make  it  a  subject  of  diplomatic 
discussion.  As  one  of  its  branches,  the  Chief  Magistrate,  in  his^ mes- 
sages, commits  the  Government  to  foreign  nations  no  more  than  the 
two  houses  of  Congress  can,  by  their  separate  action,  and  it  would  be 
a  most  extraordinary'  movement  of  the  foreign  power  to  discuss  the 
resolutions  of  either  house  of  Congress,  or  of  both,  if  passed  by  less 
than  two-thirds,  and  not  ai)proved  by  the  President,  as  if  those  resolu- 
tions were  causes  of  complaint  against  the  United  States,  to  be  sub- 
jects of  discussion  with  the  Executive.  The  President  corresponds  with 
foreign  Governments,  through  their  diplomatic  agents,  as  the  organ  of 
the  nation.  As  such  he  speaks  for  the  nation.  In  his  messages  to 
Congress  he  speaks  only  for  the  Executive  to  the  legislature.  He  rec- 
ommends, and  his  recommendations  are  i>owerless,  unless  followed  by 
legislative  action.  No  discussion  of  them  can  be  permitted.  All  allu- 
sions to  them,  made  with  a  design  to  mark  an  anticipated  or  actual 
difference  of  opinion  between  the  Executive  and  legislature,  are  indel- 
icate in  themselves,  and  if  made  to  prejudice  public  opinion,  will  imme- 
diately recoil  upon  those  who  are  so  indiscreet  as  to  indulge  them.  If 
they  contain  anything  injurious  to  foreign  nations,  the  means  of  self- 
justification  are  in  their  own  power  without  interposing  between  the 
different  branches  of  this  Government — an  interposition  wliich  can 
never  be  made,  even  by  those  who  do  not  comprehend  the  true  charac- 
ter of  the  Government  and  the  people  of  the  United  States,  without 
forfeiting  the  respect  of  both." 

Mr.  Forsytii,  Sec.  of  State,  to  Mr.  Livingston,  Mar.  5, 1835.     MSS.  Inst.,  France. 
See  infra,  §  :nH. 

When  the  French  Government,  in  1835,  made  the  payment  of  the 
French  sjioliation  indemnity  depend  upon  an  exi)lanation  being  offered 
of  President  Jackson's  message  of  December,  1S34,  reflecting  on  the 
course  of  France  (see  infra,  §  318),  Mr.  Edward  Livingston,  then  min- 

587 


§  71).]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

istor  at  Paris,  addiossed  to  the  Due  de  Broglie,  French  minister  for 
forei^^n  alfairs,  ;i  note  in  which  is  the  f"(dIowin<.j : 

"Tlie  President,  as  the  chief  executive  power,  must  have  a  free  and 
entirely  unfettered  communication  with  the  co-ordinate  powers  of  the 
Government.  As  the  or^an  of  intercourse  with  other  nations,  he  is  the 
only  source  from  which  a  knowledge  of  our  relations  can  be  conveyed 
to  the  legislative  branches.  It  results  fiom  this  that  the  utmost  free- 
dom from  all  restraint,  in  the  details  into  which  he  is  obliged  to  enter 
of  international  concerns  and  of  the  measures  in  relation  to  them,  is 
essential  to  the  proper  performance  of  this  iuiportant  part  of  his  func- 
tions. *  *  *  Were  any  foreign  i)owers  i)ermitted  to  scan  the  com- 
munications of  the  Executive,  their  complaints,  whether  real  or  alfected, 
would  involve  the  country  in  continual  controversies;  for,  the  right 
being  acknowledged,  it  would  be  a  duty  to  exercise  it  by  demanding  a 
disavowal  of  every  phrase  they  might  deem  ottensive,  and  an  explana- 
tion of  eveiy  word  to  w^hich  an  improper  interpretation  could  be  given. 
The  i)rinciple,  theiefore,  has  been  adopted,  that  no  foreign  power  has 
a  right  to  ask  for  explanations  of  anything  that  the  President,  in  the 
exercise  of  his  functions,  thinks  proper  to  communicate  to  Congress,  or 
of  any  course  he  may  advise  them  to  ])urKue.  This  rule  is  not  applicable 
to  thfe  Government  of  the  United  States  alone,  but,  in  common  with 
it,  to  all  those  in  which  the  constitutional  jjowers  are  distributed  into 
different  branches.  No  such  nation,  desirous  of  avoiding  foieign  in- 
fluence or  foreign  interference  in  its  councils — no  such  nation,  possess- 
ing a  due  sense  of  its  dignity  and  independence,  can  long  submit  to  the 
consequences  of  this  interference.  *  *  *  If  the  principle  is  correct, 
ev^ery  comuiuuication  which  the  President  makes,  in  relation  to  our  for- 
eign affairs,  either  to  the  Congress  or  to  the  public,  ought  in  prudence 
to  be  previously  submitted  to  those  ministers,  in  order  to  avoid  dis- 
putes and  troublesome  and  humiliating  explanations." 

Hunt's  Life  of  Liviugston,  401,402. 

Communications  of  the  President  to  Congress  and  the  debates  of  Con- 
gress are  domestic  matters,  concerning  which  this  Department  will  not 
entertain  the  criticisms  or  answer  the  questions  of  foreign  sovereigns. 

Mr.  Bachanau,  Sec.  of  State,  to  Mr.  Rosa,  Feb.  15,  1849.     MSS.  Notes,  Mex. 

A  foreign  minister,  accredited  to  the  United  States,  has  no  right  to 
"ask  explanations  from  the  President  concerning  the  debates  or  proceed- 
ings of  Congress,  or  any  message  which  he  may  transmit  to  either  house 
in  the  exercise  of  his  constitutional  power  and  duty.  In  a  note  toM.  de 
la  Rosa,  minister  of  Mexico,  from  Mr.  Buchanan,  Secretary  of  State, 
February  15,  1849,  it  is  said:  "  So  far  as  regards  the  debates  or  i)ro- 
ceedings  of  Congress,  this  is  the  first  occasion  on  which  it  has  become 
necessary  to  address  the  representative  of  any  foreign  Government. 
Not  so  in  relation  to  the  messages  C'f  the  President  to  Congress.  Mr. 
Castillo,  one  of  your  predecessors,  in  a  note  of  the  11th  of  December, 
1835,  to  Mr.  Forsyth,  the  Secretary  of  State,  called  upon  him  for  an  ex- 
planation of  the  jneaniug  of  a  paragraph,  relating  to  Mexico,  contained 
in  President  Jackson's  annual  messajic  to  Congress,  of  December,  1835. 
Mr.  Forsyth,  in  his  answer  of  IGth  December,  1835,  told  Mr.  Castillo 
that  'remarks  made  by  the  President  in  a  message  to  Congress  are  not 
deemed  a  proper  subject  upon  which  to  enter  into  explanation  with  the 
representative  of  a  foreign  Government.'  Mr.  Livingston,  then  our  min- 
ister to  France,  on  13tli  of  January,  1835,  informed  the  French  minister 

588 


CHAP.  IV.]  SECRETARY    OF    STATE    THE    ORGAN.  [§  71). 

of  foreign  affairs  that  in  the  message  of  Presichiit  .lackson  to  Congress 
of  the  i)revioiis  December,  'there  was  nothing  iiddrcsstMl  to  the  French 
nation' :  and  he  likened  it  very  i)ro])erly  to  a  i)r<)cec(liiig  well  known  in 
French  hvw — a  family  eoiiiM-il,  in  which  their  concerns  and  interests  are 
discussed,  bat  of  which,  in  our  case,  the  del)ales  were  necessaiily  pub- 
lic."    (Annual  message  of  the  President,  «S:c.,  I.s4()-'.j(>,  jtart  1,  ]).  71.) 

"  Mr.  Webster,  Secretary  of  State,  wrote  to  the  same  Mexican  minis- 
ter, Febi'uary  21,  J. S5 1  :  'The  uuiiersigned  llartered  himself  that  after 
the  expression  of  the  sentiments  of  the  Governnu'iit  contained  in  the 
note  of  Mr.  Buchanan  to  M.  de  la  llosa,  of  15th  February,  1.S49,  M.  de 
la  Rosa  would  liave  abstained  fiom  making  a  message  of  the  President 
to  either  house  of  Congress  a  subject  of  diijlomatic  representation." 

Lawrence's  Wlieatou  (ed.  1863),  385. 

The  President's  cooimunications  to  Congress  are  matters  of  domestic 
concern  which  are  not  within  the  range  of  the  official  notice  of  foreign 
sovereigns. 

Mr.  Webster,  Sec.  ofState,  to  Mr.  Hiilsemauri,  Dec.  21, 1830.     MSS.  Xotes,  Germ. 
St.     See,  far  this  letter  iu  full,  supra,  ^  47. 

"The  President's  annual  message  is  a  communication  from  the  Ex- 
ecutive to  the  legislative  branch  of  the  Government;  an  internal  trans- 
action, with  which  it  is  not  deemed  i)roper  or  respectful  lor  foreign 
powers  or  their  representatives  to  interfere,  or  even  to  resort  to  it  as 
the  basis  of  a  diplomatic  corresi)ondence.  It  is  not  a  document  ad- 
dressed to  foreign  Governments." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Herran,  Dec.  22, 1856.    MSS.  Notee,  Colombia. 
To  same  effect  see  Mr.  Fish,  Sec.  of  State,  to  Mr.  Preston,  Dec.  12,  1870.     MSS. 
Notes,  Hayti. 

During  Mr.  Buchanan's  admin istration,iu  1857,  he  held  certain  "confi- 
dential conferences"  witli  Lord  Napier  on  questions  concerning  Central 
America.  The  misunderstandings  that  lollowed  these  interviews  (see 
Lord  Niipier  to  General  Cass,  Ai)r.  12,  1S58;  Br.  and  For.  St.  Pap., 
1857-'58,  vol.  48.  051)  are  further  illustrations  of  the  wisdom  of  the 
position  taken  by  Mr.  Monroe,  and  followed  by  other  Presidents,  to  hold 
no  official  intercourse  with  foreign  ministei's  except  through  the  Secre- 
tary of  State,  the  Secretary's  action  not  bi-iding  the  Governments  con- 
cerned unless  when  in  the  shape  ol'  notes  or  of  reports  of  intei'views  re- 
duced to  writing  and  assented  to  by  both  parties.  As  luither  illustra- 
tions of  the  position  above  state<i,  see  Lord  Nai)ier\s  rejjort  of  Mr. 
Buchanan's  informal  talk  in  I'.ritish  and  Foreign  State  Papers,  ut  supra, 
755.     See  also  as  to  danger  of  oral  communication,  v^/Wr,  §  S\)b. 

"This  Department  is  the  legal  organ  of  communication  between  the 
President  of  the  United  States  and  foreign  countries.  All  foreign 
powers  recognize  it  and  trajismit  tlieir  communications  through  it, 
through  the  dispatches  of  our  ministers  abioad,or  their  own  diplomatic 
representatives  residing  near  this  Government.  These  communications 
are  submitted  to  the  President,  and,  when  i)roper,  are  replied  to  under 
his  direction  by  the  Secretary  of  State.  This  mutual  correspondence  is 
recorded  and  preserved  in  tjie  aichives  of  this  Department.     This  is,  I 

580 


§  79.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

believe,  the  same  system  which  prevails  in  the  Governments  of  civilized 
states  everywhere." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  June  27,  1862.     MSS.  Inst.,  France. 

"At  the  same  time  I  think  it  proper  to  suggest  to  you  that  all  corre- 
spondence between  diplomatic  and  consular  agents  of  the  United  States 
residing  in  foreign  countries  is  conducted,  under  the  law  of  nations, 
confidentially,  with  amenability  only  to  the  Government  of  the  United 
States." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Sullivan,  Oct.  25,  1867.     MSS.  Dom.  Let. 

"  It  is  neither  convenient  nor  customary  with  the  Executive  depart- 
ment to  discuss  or  give  explanations  concerning  the  expressions  of 
opinions  which  are  made  in  incidental  debates  and  resolutions  from 
time  to  time  in  either  or  both  of  the  legislative  bodies,  at  least  until 
they  assume  the  practical  form  of  law.  When  they  assume  that  form 
they  are  constitutionally  submitted  to  the  President  for  his  considera- 
tion, and  he  is  not  only  entitled,  but  he  is  obliged  to  announce  his  con- 
currence or  non-concurrence  with  the  will  of  the  legislature.  (See  infra^ 
§  107.) 

"  It  would  not  be  becoming  for  me  to  entertain  correspondence  with 
a  foreign  state  concerning  incidental  debates  and  resolutions  in  regard 
to  the  treaty  for  the  two  Danish  islands  while  it  is  undergoing  consti- 
tutional consideration  in  the  Senate  and  in  Congress." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Yeaman,  Jan.  2,  1868.     MSS.  Inst.,  Denmark. 
As  to  this  negotiation,  see  supra,  $  61o. 

"  Your  dispatch  No.  14,  of  the  8th  ultimo,  has  been  received.  The 
view  is  correct  which  it  takes  of  the  absurd  newspaper  report  of  a  letter 
from  President  Grant  to  the  Emperor  of  Russia,  congratulating  the  lat- 
ter upon  his  denunciation  of  the  clause  of  the  treaty  of  Paris  which  re- 
stricts liberty  of  navigation  in  the  Black  Sea.  The  qpcasions  are  rare 
which  are  conceived  to  warrant  or  require  a  deviation  on  the  part  of  the 
President  from  the  rule  which  limits  his  communications  to  foreign  sov- 
ereigns to  mere  letters  of  ceremony.  The  occasion  adverted  to  was  not 
deemed  sufficient  to  call  for  any  such  communication.  It  is  true  that 
the  United  States,  not  having  been  a  party  to  the  treaty  of  Paris,  may 
have  more  or  less  reason  to  complain  of  any  curtailment  of  their  rights 
under  the  law  of  nations  which  it  may  have  effected.  No  formal  com- 
plaint on  the  subject,  however,  has  as  yet  been  addressed  to  either  of 
the  parties  to  that  instrument,  though  the  restriction  which  it  imposes 
on  the  right  of  our  men-of-war  to  the  jfassage  of  the  Uardfinelles  and 
the  Bosj)horus  is  under  serious  consideration." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  McVoagh,  Jan.  5,  l':'7I.     MSS.  Inst.,  Turkey; 
For.  Kel.,  1871. 

Correspondence  by  a  foreign  minister  with  the  press  in  this  country 
on  subjects  connected  with  his  mission,  such  correspondence  involving 
590 


CHAF.  IV.]  SECRETARY    OF    STATE    THE    ORGAN.  [§  79. 

an  appeal  to  the  people  on  diplomatic  issues,  is  fjround  for  his  dis- 
missal. 

Mr.  Fish,  Sec.  of  Slate,  to  Mr.  Ciirtiii,  Nov.  IG,  1871.     MSS.  Inst.,  Russia.     See 
infra,  $  82. 

Official  communications  with  the  President  can  be  only  through  the 
Secretary  of  State. 

Mr.  Fisli,  Sec.  of  State,  to  Mr.  Wasbburuo,  June  19,  1873.     MSS.  Inst.,  France. 

"  It  is  not  regular  for  any  other  authority  than  that  of  the  depart- 
ment of  foreign  affairs  in  the  counfry  where  diplomatists  are  accredited 
to  address  letters  upon  public  business  directly  to  them.  When  such 
other  authority  has  occasion  to  commuuicate  with  them,  this  is  invaria- 
bly done  through  the  department  intrusted  with  the  foreign  relations 
of  the  country." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cox,  Jan.  22,  1874.  MSS.  Dom.  Let. 

The  opinion  of  the  Attorney-General  of  the  United  States  cannot  be 
taken  officially  by  a  diplomatic  representative  of  the  United  States 
except  through  the  medium  of  the  Secretary  of  State. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jay,  Aug.  2,  1874.     MSS.  lust ,  Austria. 

"  The  policy  of  the  law  is  to  prohibit  all  communication  with  private 
and  unofficial  persons  on  subjects  under  discussion  between  this  Gov- 
ernment and  another.  Such  commuuication  can  be  made  verbally  by 
trusted  messengers,  as  much  to  the  detriment  of  the  public  service  and 
the  public  interest,  and  in  as  complete  disregard  of  the  policy  and  the 
letter  of  the  statute,  as  it  can  by  written  correspondence.  It  may  even 
be  more  dangerous  to  intrust  it  to  the  memory  or  even  the  fidelity  of  a 
messenger  than  to  the  exact  words  of  a  written  communication." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  Nov.  20,  1875.     MSS.  Inst.,  Hayti. 

Prince  Bismarck,  having  declined  to  be  "  the  medium  of  communica- 
tion between  the  House  of  Eepresentatives  of  the  United  States  and 
the  Reichstag  of  a  resolution  on  the  subject  of  the  death  of  Mr.  Las- 
ker"  (a  late  member  of  that  body,  who  died  in  New  York),  Mr.  Fre- 
linghuysen,  Secretary  of  State,  in  a  telegram  to  Mr.  Sargent,  minister  to 
Berlin,  after  exidaining  the  friendly  intent  of  the  resolution,  stated  that 
"its  non-transmission  officially,  as  it  was  intended  and  claimed  on  its 
face  to  be  of  friendly  intent,  while  a  matter  of  regret,  is  not  one  of 
concern  to  either  branch  of  the  Government  of  the  United  States."  . 

Mr.  Frelinghiiyscn  to  Mr.  Sargent,  Mar.  10,  1884.     MSS.  Inst.,  Genu. 

A  foreign  minister  here  is  to  correspond  with  the  Secretary  of  State 
on  matters  which  interest  his  nation,  and  ought  not  to  be  permitted 
to  resort  to  the  press.  He  has  no  authority  to  communicare  his  senti- 
ments to  the  people  by  publications,  either  in  manuscript  or  in  print, 
and  any  attenji)t  to  do  so  is  conteni])!  of  this  Government.     His  inter- 

591 


§  80.]  DIPLOMATIC    AGENTS.  [CHAP.   IV. 

course  is  to  be  with  the  Executive  of  the  United  States  only,  upon  mat- 
ters that  concern  his  mission  or  trust. 
1  Op  ,  74,  Lee,  1797.     See  infra,  $  84. 

That  interference  by  a  foreign  minister  in  the  politics  of  the  country 
of  his  mission  is  a  breach  of  duty,  see  infra  §§  84,  lOG. 

III.  CONTINUITY   OF   FOBEIGN  INFLATIONS   UNBROKEN  BY  PARTY 

CHANGES. 

§80. 

Whatever  may  be  the  changes  in  the  persons  directing  at  home  and 
abroad  our  foreign  relations,  the  Department  maintains  a  continuity  in 
the  traditions  and  management  of  the  office;  nor  will  itperujitan  appeal, 
based  on  party  changes,  to  be  made  either  to  or  from  foreign  represent- 
atives.    (iSee  8  J.  Q.  Adams'  Mem.,  264.) 

This  course  was  taken  by  Mr.  Webster  and  Mr.  Marcy  in  connection 
with  the  action  of  Mr.  Clayton  in  sending  Mr.  Mann  to  Hungarv.  {Sujyra, 
§§  47#.) 

How  tar  a  Secretary  of  State  can  disclaim  the  action  of  his  prede- 
cessor was  discussed  when  the  nomination  of  Mr.  Van  Buren  came  before 
the  Senate  in  1832.  Mr.  Van  Buren,  when  Secretary  of  State,  had  said, 
in  instructions  to  Mr.  McLane,  that  "in  reviewing  the  causes  which 
have  preceded  and  more  or  less  contributed  to  a  result  so  much  regretted 
(the  refusal  of  Great  Britain  to  modify  the  restrictions  on  the  trade 
between  the  United  States  and  the  West  Indies),  there  will  be  found 
three  grounds  upon  which  we  are  most  avssailable:  (1)  In  our  too  long 
and  too  tenaciously  resisting  the  right  of  Great  Britain  to  impose  pro- 
tecting duties  in  her  colonies;  (2)  in  not  relieving  her  vessels  from 
the  restrictions  of  returning  direct  from  the  United  States  to  the  colo- 
nies after  ])ermission  had  been  given  by  Great  Britain  to  our  vessels  to 
clear  out  from  the  colonies  to  any  other  than  Briti.^h  port;  and  (.3)  in  omit- 
ting to  accei)t  the  terms  offered  by  the  act  of  Parliament  of  July,  1825." 
It  was  arguiHl  that  these  instructions  were  a  reflection  on  the  preced- 
ing Administration  (that  of  Mr.  J.  Q.  Adams),  and  this  was  one  of  the 
chief  grounds  for  the  rejection  of  .Mr.  Van  Buren  by  the  Senate,  Mr. 
Calhoun,  Vice-President,  giving  the  casting  vote  against  it.  It  after- 
wards transpired  that  these  instructions  were  drawn  from  a  dispatch  of 
Mr.  Gallatin  sent  to  the  State  Department  in  the  last  year  of  Mr. 
Adams's  administration. 

1  Benton's  Thirty  Years  in  the  Senate,  216. 

IV.  EXECUTIVE   DISCRETION  DETERMINES   THE  WITHDRAWAL  OR  RE. 
NEWAL  OF  MISSIONS  AND  MINISTERS. 

§  81. 

"It  is  necessary  for  America  to  have  agents  in  different  parts  of 
Europe,  to  ,ive  some  information  concerning  our  affairs,  and  to  refute 
the  abominable  lies  that  the  hired  emissaries  of  Great  Britain  circulate 
in  every  corner  of  Europe,  by  which  they  keep  up  their  own  credit  and 
ruin  ours.     1  have  been  more  convinced  of  this  since  my  peregrinations 

592 


CHAP.  IV.]  WITHDRAWAL    OR    RENEWAL.  [?  81. 

in  this  country  (ban  ever.  The  universal  and  i)rofound  ignorance  of 
America  here  has  astonished  me.  It  will  require  time  and  a  great  deal 
of  ])rudence  and  delicacy  to  undeceive  them." 

Mr.  J.  Adams  to  Mr.  Franklin,  Oct.  14,  1780.     7  John  Adainn'  Works,  317. 

"In  the  same  manner,  or  at  least  for  similar  reasons,  as  long  as  we 
have  Jiny  one  minister  abroad  at  any  Euroi)ean  court,  I  think  we  ought 
to  have  one  at  every  one  to  which  we  are  most  essentially  rehited, 
whether  in  commerce  or  policy;  and,  therefore,  while  we  have  any 
minister  at  Versailles,  the  Hague,  or  London,  I  think  it  clear  we  ought 
to  have  one  at  each,  though  1  confess  I  have  sometimes  thought  that 
after  a  very  few  years  it  will  be  the  best  thing  we  can  do  to  recall  every 
minister  from  Europe,  and  send  embassies  only  on  special  occasions." 

Mr.  J.  Adams  to  Mr.  LivlDgston,  Feb.  5,  1783.     8  John  Adams'  Works,  37. 

"The  Chevalier  de  Pinto  informs  me  that  he  has  written  to  his  court 
for  explanations  upon  some  points,  and  expects  an  answer  in  a  few  da.-^s. 
When  it  arrives,  he  will  call  upon  me.  In  the  mean  time,  he  says  his 
court  is  solicitous  to  send  a  minister  to  America,  but  that  etiquette  forbids 
it,  unless  Congress  will  agree  to  send  one  to  Lisbon.  They  would  send  a 
minister  to  New  York,  if  Congress  would  return  the  compliment;  but 
if  Congress  will  not  send  a  minister  plenipotentiary,  they  wish  to  send, 
a  resident  or  even  a  charge  d'affaires,  but  etiquette  will  not  permit  this, 
unless  Congress  will  send  a  resident  or  charge  d'affaires  to  Portugal." 

]\Ir.  J.  Adams  to  Mr.  Jefferson,  Jan.  19,  1786.     8  John  Adams'  Works,  :5(i7. 

As  to  mode  of  recalling  foreign  ministers,  see  8  John  Adams'  Works,  473,  478.   • 

On  October  13, 1789,  Gouverneur  Morris,  then  in  Paris,  was  asked  by 
General  Washington  to  proceed  to  London  as  a  private  agent,  and,  "on 
the  authority  and  credit  of  this  letter,  to  converse  with  His  P>ritannic 
Majesty's  ministers"  as  to  a  treaty  of  commerce  with  the  United  States. 

10  Washington's  Writings,  43. 

Gouverneur  Morris,  when  unofficial  agent  for  President  Washington 
in  London,  in  171)0,  said,  in  a  letter  to  President  Washington,  on  May  29, 
1790,  that  he  inforuied  Mr.  Pitt  and  the  Duke  of  Lee<ls  that  "we  could 
not  appoint  any  minister,  they  so  much  neglected  the  former  appoint- 
ment. He  asked  me  whether  we  would  appoint  a  minister  if  they 
would  f  I  told  him  1  could  almost  promise  that  we  should,  but  was  not 
authorized  to  give  any  positive  assurance." 

1  Am.  St.  Pap.  (For.  li-A.),  124. 

"Negotiation,  in  the  present  state  of  things,  is  attended  with  pecu- 
liar difficulties.  As  the  King  of  Great  Britain  twice  i)roposed  to  the 
United  States  an  exchange  of  ministers,  once  through  Mr.  Hartley  and 
once  through  the  Duke  of  Dorset,  and  when  the  United  States  agreed 
to  the  proposition,  flew  from  it;  to  send  a  minister  again  to  St.  James 
till  that  court  explicitly  promises  to  send  one  to  America  is  a  humilia- 
tion to  which  the  United  States  ought  never  to  submit.  A  remon- 
strance from  sovereign  to  sovereign  cannot  be  sent  but  by  an  embassa- 
dor of  some  sort  or  other;  from  minister  of  state  to  minister  of  state  it 
might  be  transmitted  in  many  ways.  A  remonstraiuM*  in  the  form  of  a 
letter  from  the  American   minister  of  state  to  the  Duke  of  Leeds,  or 

S.  Mis.  102— VOL.  T 38  ^^^ 


§  81.]  DIPLOMATIC    AGENTS,  [cHAP.  tV. 

whoever  may  be  secretary  of  state  for  foreign  afiairs,  might  be  trans- 
mitted through  an  envoy,  minister  plenipotentiary,  or  embassador  of 
the  President  of  the  United  States  at  Paris,  Madrid,  or  the  Hague,  and 
through  the  British  embassador  at  either  of  those  courts.  The  utmost 
length  that  can  now  be  gone,  with  dignity,  would  be  to  send  a  minister 
to  the  court  of  Loudon,  with  instructions  to  present  his  credentials, 
demand  an  audience,  make  his  remonstrance;  but  to  make  no  estab- 
lishment, and  demand  his  audience  of  leave  and  quit  the  kingdom  in 
one,  two,  or  three  months  if  a  minister  of  equal  degree  were  not  aj)- 
pointed  and  actually  sent  to  the  President  of  the  United  States  from 
the  King  of  Great  Britain.'' 

Vice-President  Adams  to  President  Washington,  Aug.  29, 1790.    8  John  Adams's 

Works,  499. 
As  to  recall  of  Mr.  Monroe  and  appointment  of  Mr.  C.  C.  Pinckney  as  minister 

to  France  in  1796,  see  infra,  $  85. 

"  Persevering  in  the  pacific  and  humane  policy  which  had  been  invari- 
ably professed  and  sincerely  pursued  by  the  excutive  authority  of  the 
United  States,  when  indications  were  made  on  the  part  of  the  French 
Eepublic  of  a  disposition  to  accommodate  the  existing  differences  be- 
tween the  two  countries,  I  felt  it  to  be  my  duty  to  prepare  for  meeting 
their  advances  by  a  nomination  of  ministers,  upon  certain  conditions 
which  the  honor  of  our  country  dictated,  and  which  its  moderation  had 
given  it  a  right  to  prescribe.  The  assurances  which  icere  required  of  the 
French  Government  previous  to  the  departure  of  pur  envoys  have  been  given, 
through  their  minister  of  foreign  relations,  and  I  have  directed  them  to  pro- 
ceed on  their  mission  to  Paris.  They  have  full  jjower  to  conclude  a  treaty, 
subject  to  the  constitutional  advice  and  consent  of  the  Senate.  The 
characters  of  these  gentlemen  are  sure  pledges  to  their  country  that 
nothing  incompatible  with  its  honor  or  interest,  nothing  inconsistent 
with  our  obligations  of  good  faith  or  friendship  to  any  other  nation,  will 
be  stipulated." 

Third  Annual  Address  of  President  John  Adams,  1799. 
As  to  institution  of  special  missions,  see  supra,  ^.47. 
As  to  conditions  imposed  by  Fra^uce,  see  infra,  §  83. 

"  I  had  twenty  times  answered  these  arguments  by  saying  that  there 
was  no  such  etiquette  [as  that  requiring  exchange  of  ministers].  It 
was  true  that  in  ancient  and  more  barbarous  times,  when  nations  had 
been  inflamed  by  long  wars,  and  the  people  wrought  up  to  a  degree  of 
fury  on  both  sides,  so  as  to  excite  apprehensions  that  embassadors  would 
be  insulted  or  massacred  by  the  populace,  or  even  imprisoned,  as  in  Tur- 
key, sovereigns  had  insisted  that  ambassadors  should  be  exchanged, 
and  that  one  should  be  held  as  a  hostage  for  the  other.  It  had  even 
been  insisted  that  a  French  ambassador  should  embark  at  Calais  at  the 
same  hour  that  an  English  ambassador  embarked  at  Dover.  But  these 
times  were  passed.  Nations  sent  ambassadors  now  as  they  pleased. 
Franklin  and  his  associates  had  been  sent  to  France  ;  Mr.  Jay  had  been 
sent  to  Spain  ;  I  had  been  sent  to  Holland ;  Mr.  Izard  had  been  com- 
missioned to  Tuscany :  Mr.  W.  Lee  to  Vienna  and  Berlin,  without  any 

594 


CHAP.  IV.]  WITHDRAWAL    OR    RENEWAL.  [§81. 

stipulation  for  seuding  ministers  in  return.  We  had  a  minister  in  Lon- 
don three  years  without  any  minister  from  England  in  return.  We  have 
had  a  minister  at  Berlin  without  any  from  Prussia." 

9  John  Adams'H  Works,  271.     (Patriot  Letters,  No  10.) 

The  British  ministry  having  held  back  the  appointment  of  a  minister 
to  the  United  States,  at  a  very  critical  period,  for  some  months  after 
Mr.  Jackson,  at  the  request  of  the  Government  of  the  United  States, 
had  been  recalled,  Mr.  Pinkney,  then  representing  the  Unit^ed  States  at 
London,  on  January  14,  1811,  wrote  as  follows  to  Lord  Wellesley : 

"After  a  lapse  of  many  months  since  I  had  the  honor  to  receive  and 
convey  to  ray  Government  your  lordship's  repeated  assurances,  written 
as  well  as  verbal  (which  you  declined,  however,  to  put  into  an  official 
form),  '  that  it  was  your  intention  immediately  to  recommend  the  ai)point- 
ment  of  a  minister  plenipotentiary  from  the  King  to  the  United  States,' 
the  British  Government  continues  to  be  represented  at  Washington  by 
a  charge  d'affaires,  and  no  steps  whatever  ai)pear  to  have  been  taken 
to  fulfill  the  expectation  which  the  above-mentioned  assurances  pro- 
duced and  justified. 

"  In  this  state  of  things,  it  has  become  my  duty  to  inform  your  lord- 
ship, in  compliance  with  my  instructions,  that  the  Government  of  the 
United  States  cannot  continue  to  be  represented  here  by  a  minister, 
pleniiiotentiary. 

"As  soon,  therefore,  as  the  situation  of  the  King's  Government  will 
permit,  I  shall  wish  to  take  my  leave,  and  return  to  America,  in  the 
United  States  frigate  Essex,  now  at  Plymouth ;  having  first  named,  as 
I  am  specially  authorized  to  do,  a  fit  person  to  take  charge  of  the 
affairs  of  the  American  legation  in  this  country." 

The  following  correspondence  then  ensued  : 

"I  received  at  a  very  late  hour  last  night  two  notes  from  Lord 
Wellesley  (bearing  date  'February  15, 1811'),  of  which  copies,  marked 
No.  1  and  No.  2,  are  inclosed.  Taken  together  (as  of  course  they  must 
be),  they  announce  the  appointment  of  Mr.  Foster  as  envoy  extraordi- 
nary and  minister  plenipotentiary  to  the  United  States,  and  set  forth 
the  reasons  why  an  appointment  has  been  so  long  delayed. 

"  You  will  perceive,  in  the  second  and  third  paragraphs  of  the  unoffi- 
cial paper,  a  distinct  disavowal  of  the  offensive  views  which  the  appoint- 
ment of  a  mere  charg^  d'affaires  and  other  circumstances  appeared 
originally  to  indicate. 

"  We  are  now  told  in  writing  that  the  delay  in  appointing  a  minister 
plenipotentiary  was  occasioned,  in  the  first  instance,  not  by  any  such 
considerations  as  have  been  supposed,  but  'by  an  earnest  desire  of  ren- 
dering the  appointment  satisfactory  to  the  United  States  and  conducive 
to  the  effectual  establishment  of  harmony  between  the  two  Govern- 
ntents';  that,  more  recently,  'the  state  of  His  .Majesty's  Government 
rendered  it  impossible  to  make  the  intended  a])pointment,'  and  thiit 
Lord  Wellesley  was,  therefore,  'concerned  to  find,  by  my  letter  of  the 
14tli  of  January,  that  the  Government  of  the  United  States  should  be 
induced  to  suppose  that  any  indisposition  could  exist,  on  the  part  of 
His  Majesty's  Government,  to  place  the  British  mission  in  America  on 
the  footing  most  acceptable  to  the  United  States  as  soon  as  might  be 
practicable,  consistently  with  the  convenience  of  affairs  in  this  country. 

"  The  two  papers  are  evidently  calculated  to  i)revent  me  from  acting 
upon  my  late  request  of  an  audience  of  leave ;  and  they  certainly  seem 

595 


§  81.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

to  put  it  in  my  power,  if  they  do  not  make  it  my  duty,  to  forbear  to  act 
upon  it. 

''I  have  it  under  consideration  (looking-  to  the  instructions  contained 
m  your  letter  of  the  15th  of  November)  what  course  I  ought  to  pursue. 
It  is  at  any  rate  my  intention  to  return  to  America  in  the  Essex,  as  1 
shall  doubtless  have  the  President's  permission  to  do  in  consequence  of 
my  letter  to  you  of  the  24th  of  November." 

Mr.  Pinkney  to  Mr.  Sir.iih,  Sec.  of  State,  Feb.  ](>,  1811.     3  Aiu.  St.  Pap.  (For. 
Rel.),  412. 

"The  result  of  ray  retiectious  on  Lord  Wellesley's  two  communica- 
tions of  the  loth  instant  will  be  found  in  my  letter  to  him  of  yesterday's 
date,  of  which  I  now  transmit  a  copy. 

"  It  appeared  to  me  that  the  appointment  of  a  minister  plenipoten- 
tiary to  the  United  States  was  nothing,  or  rather  worse  than  nothing-,  ij' 
the  orders  in  council  were  to  remain  in  ifbrce,  the  blocknde  of  May,  1800, 
to  be  unrepealed,  the  aflair  of  the  (Jhesapeake  to  continue  at  large,  and 
the  other  urgent  questions  between  us  to  remain  unsettled. 

"  The  '  posture  of  our  relations,'  as  you  have  expressed  it  in  your 
letter  of  the  loth  of  November,  would  not  be  'satisfactorily  changed' 
merely  by  such  an  appointment;  and,  of  course,  my  functions  could 
not  be  resumed  upon  the  sole  foundation  of  it. 

"  I  have  put  it  to  Lord  Wellesley  to  say  explicitly  whether  full  and 
satisfactory  arrangement  is  intended,  before  I  answer  his  otScial  letter 
concerning  my  audience  of  leave.  If  he  is  prepared  to  do  at  once  what 
we  require,  or  to  instruct  the  new  minister  to  do  at  Washington  what 
does  not  demand  immediate  interference  here,  I  .shall  think  it  my  duty 
to  forbear  to  take  leave  on  the  26ih  instant.  If  he  declines  a  frank 
reply,  or  refuses  our  demands,  I  shall  jDress  for  my  audience,  and  put 
an  end  to  my  mission." 

Mr.  Pinkney  to  Mr.  Smith.  Sec.  of  State,  Feb.  18,  1811.     3  Am.  St.  Pap.  (For. 

Eel.),  414. 
For  a  narrative  of  the  causes  of  the  disuiissal  of  Mr.  Jackson  by  the  United 

States,  see  infra,  §^  84,  107. 
The  papers  relative  to  the  recall  of  Mr.  Motley,  in  1870,  as  minister  at  Loudon, 

will  be  found  in  Senate  Ex.  Doc.  No.  11,  41st  Cong.,  3d  sess. 
As  to  Mr.  Motley's  alleged  expressions  of  disrespect  to  the  President,  see  Senate 

Ex.  Doc.  No.  1,  40th  Cong.,  2d  sess. 
The  arguments  for  a  distinct  diplomatic  corps  are  well  iiut  in  Schuyler's  Am. 

Diplomacy,  164  j^. 

V.  NON-ACCEPTABLE  MINISTER  MAY  BE  REFUSED. 

§  82. 
For  dismissal  of  minister,  see  ij  84. 

"  It  is  a  general  rule  that  no  nation  has  a  right  to  keep  an  agent 
within  the  limits  of  another  without  the  consent  of  that  other." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Carmichael,  Oct.  14,  179-2.     MSS.  Inst.,  Min- 
isters. 

''Every  foreign  agent  depends  upon  the  doul)le  will  of  the  two  Gov- 
ernments— of  that  which  sends  him,  and  of  that  which  is  to  permit 
596 


CHAP.  IV.]  WHEN    MINISTER    MAY    BE    REJECTED.  [§  82. 

the  exercise  of  Ids  functions  within  its  territory — and  when  either  of 
these  wills  is  refused  or  withdrawn,  his  authority  to  act  within  that 
territory  becomes  incomplete.  By  what  member  of  th(;  (our)  Govern- 
ment the  right  of  giving  or  withdrawing  permission  is  to  be  exercised 
here,  is  a  question  on  which  no  foreign  agent  can  be  permitted  to  make 
himself  the  umpire.  It  is  sufficient  for  him,  under  our  Government, 
that  he  is  informed  of  it  by  the  Executive." 

Mr.  Jefferson,  Sec.  of  State,  to  minister  of  France,  Dec.  9,  1793.    MSS.  Notes, 
For.  Leg. ;  4  Jeff.  Works,  90. 

The  refusal  of  the  United  States  to  receive  in  1809  a  minister  from 
the  then  titular  Bourbon  King  of  Spain  could  not  justly  be  regarded  as 
an  ofieuse  b}^  Ferdinand  VII  after  the  restoration  of  the  Bourbons. 
"It  was  imputable  to  the  state  of  Spain  at  that  time,  her  territory 
being  in  the  possession  of  contending  armies  nearly  equal,  victory  some- 
times favoring  each,  and  the  result  altogether  precarious." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Ouis,  May  5,  1815.     MSS.  Notes,  For.  Leg. 

The  Government  of  the  United  States,  if  there  be  personal  objections 
to  a  minister  from  a  foreign  sovereign,  may,  instead  of  declining  to  re- 
ceive such  minister,  state  the  objections  to  such  sovereign,  saying  that 
if  he  still  ask  for  the  minister's  recognition,  it  will  be  given  "  as  an  act 
of  accommodation  to  himself."  But  such  recognition  will  not  be  given 
when  demanded  as  a  matter  of  right.  "  Ko  instance  is  recollected  of 
one  power  pressing  another  equally  independent  to  recognize  against 
its  will  a  minister  to  whom  objections  of  a  personal  nature  are  enter- 
tained." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Onis,  May  15,  1815.     MSS.  Notes,  For.  Leg. 

A  minister  from  a  foreign  sovereign  will  not  be  received  when  there 
are  personal  objections  to  him,  and  when  the  nomination  is  forced,  not 
as  a  matter  of  courtesy,  but  in  defiance  of  such  objections. 

Mr.  Dallas,  Acting  Sec.  of  State,  to  Mr.  Ouis,  June  2G,  1815.     See  Mr.  Monroe, 
Sec.  of  State,  to  Mr,  Onis,  Dec.  8,  1815.     MSS.  Notes,  For.  Leg. 

"The  interchange  of  ministers  between  friendly  powers  is  intended 
for  mutual  advantage,  and  particularly  for  the  important  purpose  of 
preserving  the  relations  of  amity  between  them.  Each  has  a  right  to 
object  to  any  person  who  has  given  just  cause  of  offense,  and  to  decline 
receiving  him  as  a  minister,  or  to  demand  his  recall  in  case  he  had  been 
received.  IS^either  power  has  a  right  to  force  on  the  other  a  person  so 
circumstanced  as  minister.  Such  an  attempt  would  be  incompatible 
with  the  independence  of  the  power  on  wliom  it  might  be  made.  Self- 
respect  forbids  a  presumption  that  the  idea  was  ever  entertained  by 
your  sovereign." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Cevallos,  July  17,  1815.     MSS.  Notes,  For. 
Leg. 

597 


§  82.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Tlie  receptiou  of  a  commercial  agent  is  altogether  a  voliuitary  act  on 
the  part  of  the  Government  "  to  whom  he  is  accredited,  who  may  decline 
V  ithout  giving  offense." 

4  J.  Q.  Adams'  Mem.,  88. 

The  right  of  the  Government  to  whom  a  minister  is  sent  to  request 
the  Government  sending  him  to  recall  him,  is  secured  by  public  law. 

Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Poinsett,  Oct.  17, 1829.     MSS.  Inst.,  Am.  St. 

"  In  the  intercourse  between  friendly  nations,  when  the  diplomatic 
representative  of  the  one  has  rendered  himself  so  unacceptable  to  the 
authorities  of  the  other  as  to  impair  or  destroy  his  usefulness,  it  has 
ever  been  the  custom,  unless  under  extraordinary  circumstances,  to 
yield  to  such  a  request  when  made  in  respectful  and  friendly  terms. 
This  practice  is  founded  upon  the  principle  that  the  great  interests  of 
nations  ought  not  to  be  jeoparded  merely  for  the  sake  of  retaining  an 
individual  in  a  diplomatic  station.  If  diplomatic  agents  render  them- 
selves so  unacceptable  as  to  produce  a  request  for  their  recall  from  the 
Government  to  which  they  are  accredited,  the  instances  mnst  be  rare, 
indeed,  in  which  such  a  request  ought  not  to  be  granted.  To  refuse  it 
would  be  to  defeat  the  very  purpose  for  which  they  are  sent  abroad — 
that  of  cultivating  friendly  relations  between  independent  nations. 
Perhaps  no  circumstance  would  justify  such  a  refusal,  unless  the  na- 
tina]  honor  were  involved  in  the  question,  and  this  cannot  be  pretended 
on  the  present  occasion." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Jewett,  Mar.  19,  1847.     MSS   Inst.,  Peru. 

A  Government  to  whom  a  diplomatic  agent  is  sent  may,  without  giv- 
ing just  cause  of  offense  to  the  Government  sending  him,  refuse  to 
receive  him,  and  ordinarily  a  request  for  his  recall  will  be  at  once 
granted  by  the  latter  Government. 

Mr.  Buchanan,   Sec.  of  State;  to  Mr.  Carr,  Nov.  18,  1848.     MSS.  Inst.,  Barb. 
Powers. 

"  It  must  be  borne  in  mind  that  an  envoy  is  a  person  as  well  as  the 
abstract  representative  of  his  Government,  and  that  it  is  the  i^reroga- 
tive  of  every  Government  to  require  that  those  with  whom  it  deals  be 
personw  gratce,  and  to  decide  the  question  for  itself.  This  Government 
has  on  several  occasions  availed  itself  of  this  personal  right,  without 
thereby  being  supposed  to  reflect  on  the  representative  character  of  the 
person  himself,  and  still  less  upon  the  collective  representative  charac- 
ter of  his  associates." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Morgan,  Dec.  30,  1884.     MSS.  Inst., 
Mex, 

"A  diplomatic  agent  should  be  persona  grata  to  the  Government  to 
which  he  is  accredited." 

Printed  Pers.  Inst.  Dip.  Agents,  1885. 

Ah  to  refusal  of  French  Government  to  receive  Mr.  C.  C.  Pinckuey,  see  infru, 
•    $  148&. 
598 


CHAP    IV.]  AS    TO    PRELIMINARY    INQUIRIES.  [§  82a. 

VI.  NOT  USUAL  TO  ASK  AS  TO  ACCEPTABILITY  IN  ADVANCE. 

§  82a. 

"  This  Government  does  not  require  other  powers  to  ask,  in  advance,  if 
contemphited  appointments  of  ministers  will  or  will  not  be  ac(;eptable." 
But  when  such  an  inquiry  is  put,  it  is  competent  for  this  Department  to 
answer,  "that  unless  certain  prevalent  impressions  were  unfounded,  the 
purposed  appointment  could  not  prove  acceptable." 

Mr.  Fish,  Sec.  of  State,  to  Mr.'Neal,  Mar.  11,  1870.  MSS.  Inst.,  PortugaT. 

"  Upon  reflection  ithe  importance  of  Ihe  question  becomes  api)arent. 
Consequently,  I  have  made  careful  search  for  the  precedents  and  prac- 
tice in  this  Department  for  the  last  ninety  years.  The  result  enables 
me  to  inform  you  that  no  case  can  be  found  in  the  annals  of  this  Gov- 
ernment In  which  the  acceptability  of  an  envoy  from  the  United  States 
was  inquired  about  or  ascertained  in  advance  of  his  appointment  to 
the  mission  for  which  he  was  chosen. 

"  \Vhilst  the  practice  to  which  Count  Kalnoky  refers  may,  in  a  limited 
degree,  prevail  among  European  states,  yet  in  this  respect  the  excep- 
tions are  very  numerous,  and  there  are  important  reasons  why,  in  this 
country,  the  practice  should  never  have  been  adopted,  and  why  its 
adoption  would  not  be  practical  or  wise. 

"  Our  system  of  frequently  recurring  elections  at  regular  and  stated 
periods  provides,  and  was  intended  to  provide,  an  opportunity  for  the  in- 
fluence of  public  opinion  upon  those  to  whom  the  administration  of  pub- 
lic; affairs  has  been  iutrusted  by  the  people  temporarily,  and  for  a  fixed 
time  only,  on  the  expiration  of  which  an  opportunity  for  a  change  in  its 
agents  and  policies  is  thus  afibrded. 

"  The  affiliation  in  sentiment  between  a  political  administration  thus 
defeated  at  the  polls  and  a  foreign  nation  closely  interested  in  maintain- 
ing certain  international  policies  and  lines  of  political  conduct,  might 
render  it  difficult  for  an  administration,  elected  for  the  very  purpose  of 
])r()ducing  a  change  of  policj^,  to  procure  the  consent  of  the  foreign 
Government  to  the  appointment  of  ageuts  whose  views  were  in  harmony 
with  the  latest  and  prevailing  expression  of  public  opinion  as  the  result 
of  popular  election." 

Mr.  Bayard,  Sec.  of  State,  to  Baron  Schaeffer,  May  20, 1885.  MSS.  Notes,  Aus- 
tria ;  Senate  Ex.  Doc.  No.  l,41Hh  Cong.,  1st  scss.  See,  to  same  cftect,  Mr. 
Bayard,  Sec.  of  State,  to  Mr.  McLiiue,  May  27,  1885,  MSS.  Inst.,  Franco ; 
Mr.  Bayard  to  Mr.  Francis,  July  1,  1885 ;  Mr.  Bayard  to  Mr.  Lee,  Aug.  31, 
1885,  MSS.  Inst.,  Austria. 
As  to  asking  for  acceptance  of  a  minister  in  advance,  see  discussion  in  Schuy- 
ler's American  Diplomacy,  134  ff, 

599 


§  83.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Vli.    CONDITIONS   DEROGATORY  TO   THE  ACCREDITING  GOVERNMENT 

CANNOT  BE  IMPOSED. 

§  83. 

"  You  will  at  the  same  time  perceive  tliat  the  French  Government 
appears  solicitous  to  impress  the  opinion  that  it  is  averse  to  a  rupture 
with  this  country,  and  that  it  has  in  a  qualified  manner  declared  itself 
willing  to  receive  a  minister  from  the  United  States  for  the  purpose  of 
restoring  a  good  understanding.  It  is  unfortunate  for  professions  of  this 
land  that  they  should  be  expressed,  in  terms  which  may  countenance  the  in- 
admissible pretension  of  a  right  to  prescribe  the  qualifications  which  a  min- 
ister from  the  United  States  should  possess,  and  that  while  France  is 
asserting  the  existence  of  a  disposition  on  her  part  to  conciliate  with 
sincerity  the  differences  which  have  arisen,  the  sincerity  of  a  like  dis- 
position on  the  part  of  the  United  States,  of  which  so  many  demon- 
strative proofs  have  been  given,  should  even  be  indirectly  questioned. 
It  is  also  worthy  of  observation  that  the  decree  of  the  Directory  alleged 
to  be  intended  to  restrain  the  depredations  of  French  cruisers  on  our 
commerce  has  not  given,  and  cannot  give,  any  relief.  It  enjoins  them 
to  conform  to  all  the  laws  of  France  relative  to  cruising  and  prizes, 
while  these  laws  are  themselves  the  sources  of  the  depredation  of  which 
we  have  so  long,  so  justly,  and  so  fruitlessly  comj)lamed. 

''  The  law  of  France,  enacted  in  January  last,  which  subjects  to  cap- 
ture and  condemnation  neutral  vessels  and  their  cargoes,  if  any  portion 
of  the  latter  are  of  British  fabric  or  produce,  although  the  entire  prop- 
erty belong  to  neutrals,  instead  of  being  rescinded,  has  lately  received 
a  confirmation  by  the  failure  of  a  proposition  for  its  repeal.  While  this 
law,  which  is  an  unequivocal  act  of  war  on  the  commerce  of  the  nations 
it  attacks,  continues  in  force,  those  nations  can  see  in  the  French  Gov- 
ernment only  a  power  regardless  of  their  essential  rights,  of  their  inde- 
pendence and  sovereignty — and  if  they  possess  the  means,  they  can 
reconcile  nothing  with  their  interest  and  honor  but  a  firm  resistance." 

President  John  Adams,  Second  Annual  Address,  1798. 

The  correspondence  of  Messrs.  Pinckuey,  Marshall,  and  Gerry,  when  ministers 
to  France  in  1797-'98,  together  with  the  XT  Z  papers,  is  given  in  2  Am. 
St.  Pap.  (For.  Kel.),  1.53  ff,  185  Jf,  205  #,  229  /.  •  The  report  of  Mr.  Picker- 
ing, Sec.  of  State,  Jan.  18,  1799,  on  this  correspondence,  is  given  in  2  Am. 
St.  Pap.  (For.  Rel.),  229. 

"  Persevering  in  the  pacific  and  humane  policy  which  has  been  inva- 
riably professed  and  sincerely  pursued  by  the  executive  authority  of  the 
United  States,  when  indications  were  made  on  the  part  of  the  French  Re- 
public of  a  disi>osition  to  accommodate  the  existing  differences  between 
the  two  countries,  I  felt  it  to  be  my  duty  to  prei)are  for  meeting  their 
advances  by  a  nomination  of  ministers,  upon  certain  conditions  which 
the  honor  of  our  country  dictated,  and  which  its  moderation  had  given 
600 


CHAP.  IV.]       ,  AS    TO    TESTS    IMPOSED.  [§  83. 

a  right  to  prescribe.  The  assurances  which  were  required  of  the  French 
Government  previous  to  the  departure  of  our  envoys  liuve  been  given 
through  their  minister  of  foreign  relations,  and  I  have  directed  them 
to  proceed  on  their  missiou  to  Paris.  They  have  full  i)ower  to  conclude 
a  treaty,  subject  to  the  constitutional  advice  and  consent  of  the  Senate. 
The  characters  of  these  gentlemen  are  sure  pledges  to  their  country 
that  nothing  incompatible  with  its  honor  or  interest,  nothing  incon- 
sistent with  our  obligations  of  good  faith  or  friendship  to  any  other  na- 
tion, will  be  stipulated." 

President  John  Adams,  Tliird  Annual  Address,  1799. 

While  under  ordinary  circu?nstances  the  Government  of  the  United 
States  will  recall  a  minister  sent  to  a  foreign  country  when  requested 
by  the  Government  of  such  country,  such  recall  will  not  be  made 
when  it  would  be  an  implied  ai)proval  of  prior  misconduct  or  of  un- 
just aggressions  by  the  Government  requesting  it. 

Mv.  Buclianan  to  Mr.  Wise,  Sept.  27,  1845.     MSS.  Inst.,  Brazil. 

"The  question  thus  raised  by  your  Govern ment  involves  principles 
of  the  greatest  importance,  and  has  no  precedent  as  yet  discoverable 
to  me  in  modern  times  and  in  intercourse  between  friendly  nations;  and 
having  submitted  the  matter  to  the  consideration  of  the  President,  I 
am  instructed  by  him  to  inform  your  Government,  through  you,  that 
the  ground  ui)on  which  it  is  announced,  that  the  usual  ceremonial  cour- 
tesy and  formal  respect  are  to  be  withheld  from  this  envoy  of  the 
United  States  to  your  Government,  that  is  to  say,  because  his  wife  is 
alleged  or  supposed  by  your  Government  to  entertain  a  certain  religious 
faith,  and  to  be  a  member  of  a  certain  religious  sect,  cannot  be  assented 
to  by  the  Executive  of  the  Government  of  the  American  people,  but  is 
and  must  be  emphatically  and  promptly  denied. 

"The  supreme  law  of  this  land  expressly  declares  that  'no  religious 
test  shall  ever  be  required  as  a  qualification  to  any  office  or  public  trust 
under  the  United  States,'  and  by  the  same  authority  it  is  declared  that 
'Congress  shall  make  no  law  respecting  an  establishment  of  religion  or 
prohibiting  the  free  exercise  thereof.' 

"This  is  a  Government  of  laws,  and  all  authority  exercised  mast  find 
its  measure  and  warrant  thereunder. 

"  It  is  not  within  the  power  of  the  President  nor  of  the  Congress  nor 
of  any  judicial  tribunal  in  the  United  States  to  take,  or  even  hear,  tes- 
timony, or  in  any  mode  to  inquire  into  or  decide  upon  the  religious 
belief  of  any  official,  and  the  proposition  to  allow  this  to  be  done  by  any 
foreign  Government  is  necessarily  and  a  fortiori  inadmissible. 

"To  suffer  an  infraction  of  this  essential  principle  would  lead  to  a 
disfranchisement  of  our  citizens  because  of  their  religious  belief,  and 
thus  impair  or  destroy  the  most  important  end  which  our  Constitution 
of  Government  was  intended  to  secure.    Religious  liberty  is  the  chief 

601 


!f 


83.]  DIPLOMATIC    AGENTS.  .         LCHAP.  IV 


coruer-stone  of  the  American  system  of  governmeut,  and  provisions  for 
its  security  are  imbedded  in  the  written  charter  and  interwoven  in  the 
moral  fabric  of  its  laws. 

"Anything  that  tends  to  invade  a  right  so  essential  and  sacred  must 
be  carefully  guarded  against,  and  I  am  satisfied  that  my  countrymen, 
ever  mindful  of  the  suffering  and  sacrifices  necessary  to  obtain  it,  will 
never  consent  to  its  impairment  for  any  reason  or  under  any  pretext 
whatsoever. 

"In  harmony  with  this  essential  law  is  the  almost  equally  potential 
unwritten  law  of  American  society  that  awards  respect  and  delicate 
consideration  to  the  women  of  the  United  States,  and  exacts  deference 
in  the  treatment  at  home  and  abroad  of  the  mothers,  wives,  and  daugh- 
ters of  the  Kepublic. 

"The  case  we  are  now  considering  is  that  of  an  envoy  of  the  United 
States,  unquestionably  fitted,  morally  and  intellectually,  and  who  has 
been  duly  accredited  to  a  friendly  Government,  towards  which  he  is 
thoroughly  well  affected;  who,  in  accordance  with  the  laws  of  this  coun- 
try, has  long  since  contracted  and  has  maintained  an  honorable  mar- 
riage, and  whose  presence  near  the  foreign  Government  in  question  is 
objected  to  by  its  agents  on  the  sole  ground  that  his  wedded  wife  is 
alleged  to  entertain  a  religious  faith  which  is  held  by  verj^  many  of  the 
most  honored  and  valued  citizens  of  the  United  States. 

"It  is  not  believed  by  the  President  that  a  doctrine  and  practice  so 
destructive  of  religious  liberty  and  freedom  of  conscience,  so  devoid  of 
catholicity,  and  so  opposed  to  the  spirit  of  the  age  in  which  we  live  can 
for  a  moment  be  accepted  bj^  the  great  family  of  civilized  nations  or  be 
allowed  to  control  their  diplomatic  intercourse. 

"Certain  it  is,  it  will  never,  in  my  belief,  be  accepted  by  the  people 
of  the  United  States,  nor  by  any  Administration  which  represents  their 
sentiments. 

"Permit  me,  therefore,  being  animated  only  by  the  sincerest  desire 
to  strengthen  the  ties  of  friendship  and  mutual  respect  between  the 
Governments  we  respectively  represent,  most  earnestly  and  respectfully 
to  crave  careful  consideration  of  this  note,  and  to  request  your  Govern- 
ment to  reconsider  the  views  you  have  communicated  to  me  in  respect 
of  the  possible  reception  of  Mr.  Keiley  on  the  mission  of  amity  and 
mutual  advantage  which,  in  the  amplest  good  faith,  he  was  selected  by 
this  Governmeut  to  perform. 

"Into  the  religious  belief  of  its  envoy,  or  that  of  any  member  of  his 
family,  neither  this  Government  nor  any  officer  thereof,  as  I  have  shown 
you,  has  any  right  or  power  to  inquire,  or  to  apply  any  test  whatever, 
or  to  decide  such  question,  and  to  do  so  would  constitute  an  infraction 
of  the  express  letter  and  an  invasion  of  the  pervading  spirit  of  the 
supreme  lavv^  of  this  land. 

"  While  thus  making  reply  to  the  only  reason  stated  by  your  Govern- 
ment as  the  cause  of  its  unreadiness  to  receive  Mr.  Keiley,  permit  me 
602 


CHAP.  IV.]  WHEN    MINISTER    MAY    BE  SENT    BACK  [§  84. 

also  to  remark  that  the  President  fully  recoguizes  the  liigbly  iiuportant 
and  undoubted  right  of  every  Government  to  decide  for  itself  whether 
the  individual  presented  as  the  envoy  of  another  state  is  or  is  not  an 
acceptable  person,  and,  in  the  exercise  of  its  own  high  and  friendly  dis- 
cretion, to  receive  or  not  the  person  so  presented.  This  right,  so  freely 
accorded  by  the  United  States  to  all  other  nations,  its  Government 
would  insist  upon  should  an  occasion  deemed  to  be  proper  arise. 

Mr.  Bayard,  Sec.  of  State,  to  Barou  Schaeffer,  May  18,  1885.     MSS.  Notes,  Aus- 
tria.    Senate  Ex.  Doc.  No.  4,  49tli  Cong.,  Ist  sess. 

"  Question  has  arisen  with  the  Government  of  Austria-Hungary 
touching  the  representation  of  the  United  States  at  Vienna.  Having, 
under  my  constitutional  prerogative,  appointed  an  estimable  citizen 
of  unirapeached  probity  and  competence  as  minister  at  that  court,  the 
Government  of  Austria- Hungarj"  invited  this  Government  to  take  cog- 
nizance of  certain  exceptions,  based  upon  allegations  against  the  per- 
sonal acceptability  of  Mr.  Keiley,  the  appointed  envoy,  asking  that,  in 
view  thereof,  the  appointment  should  be  withdrawn.  The  reasons  ad- 
vanced were  such  as  could  not  be  acquiesced  in  without  violation  of  my 
oath  of  office  and  the  precepts  of  the  Constitution,  since  they  neces- 
sarily involved  a  limitation  in  favor  of  a  foreign  Government  upon  the 
right  of  selection  by  the  Executive,  and  required  such  an  application  of 
a  religious  test  as  a  qualification  for  office  under  the  United  States  as 
would  have  resulted  in  the  jjractical  disfranchisement  of  a  large  class 
of  our  citizens  and  the  abandonment  of  a  vital  principle  in  our  Govern- 
ment. The  Austro-Hungarian  Government  finally  decided  not  to  re- 
ceive Mr.  Keiley  as  the  envoy  of  the  United  States,  and  that  gentleman 
has  since  resigned  his  commission,  leaving  the  post  vacant.  I  have  made 
no  new  nomination,  and  the  interests  of  this  Government  at  Vienna  are 
now  in  the  care  of  the  secretary  of  legation,  acting  as  charge  d'affaires 
ad  interimP 

President  Cleveland,  First  Annual  Message,  1885. 

VIII.  MINISTER  MISCONDUCTING  HIMSELF  MAT  BE  SENT  BACK. 

§84. 

"  The  representative  and  executive  bodies  of  France  ha\  e  manifested 
generally  a  friendly  attachment  to  this  country,  have  given  advantages  to 
our  commerce  and  navigation,  and  have  made  overtures  for  placing  these 
advantages  on  permanent  ground.  A  decree,  however,  of  the  National 
Assembly,  subjecting  vessels  laden  with  provisions  to  be  carried  into 
their  ports,  and  making  enemy  goods  lawful  prize  in  the  vessel  of  a 
friend,  contrary  to  our  treaty,  though  revoked  at  one  time  as  to  the 
United  States,  has  been  since  extended  to  their  vessels  also,  as  has  been 
recently  stated  to  us.  Eepresentations  on  ihis  subject  will  bo  immedi- 
ately given  in  charge  to  our  minister  there,  and  the  result  shall  be  com- 
municated to  the  legislature. 

603 


§  84.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

"  It  is  with  extreme  concern  I  have  to  inform  you  that  t  he  proceed- 
ings of  the  person  whom  they  have  unfortunately  appointed  their  min- 
ister plenipotentiary  here  have  breathed  nothing  of  the  friendly  spirit 
of  the  nation  which  sent  him.  Their  tendency,  on  the  contrary,  has 
been  to  involve  us  in  war  abroad,  and  discord  and  anarchy  at  home. 
So  far  as  his  acts  or  those  of  his  agents  have  threatened  our  immediate 
commitment  in  the  war,  or  flagrant  insult  to  the  authority  of  the  laws, 
their  effect  has  been  counteracted  by  the  ordinary  cognizance  of  the 
laws,  and  by  an  exertion  of  the  powers  confided  to  me.  Where  their 
danger  was  not  imminent,  they  have  been  borne  with  from  sentiments  of 
regard  to  his  nation,  from  a  sense  of  their  friendship  toward  us,  from  a 
conviction  that  they  would  not  suffer  us  to  remain  long  exposed  to  the 
action  of  a  person  who  has  so  little  respected  our  mutual  dispositions, 
and  from  a  reliance  on  the  promises  of  my  fellow-citizens  in  their  prin- 
ciples of  peace  and  order.  In  the  mean  time,  I  have  respected  and 
pursued  the  stipulations  of  our  treaties,  according  to  what  I  judged 
their  true  sense,  and  have  withheld  no  act.  of  friendship  which  their 
affairs  have  called  for  from  us,  and  which  justice  to  others  left  us  free 
to  perform.  I  have  gone  further.  Eather  than  employ  force  for  the 
restitution  of  certain  vessels  which  I  deemed  the  United  States  bound 
to  restore,  I  thought  it  more  advisable  to  satisfy  the  parties  by  avowing 
it  to  be  my  opinion  that,  if  restitution  were  not  made,  it  would  be  in- 
cumbent on  the  United  States  to  make  compensation.  The  papers  now 
communicated  will  more  particularly  apprise  you  of  these  transaciious." 

President  Washington,  special  message,  Dec.  5,  1793.    See  1  Am.  St.  Pap.  (For. 
Rel.),  141. 

That  Washington's  mature  judgment  was  against  dismissing  Genet 
except  in  case  of  necessity  is  admitted  by  Mr.  Hildreth  (4  Hist.  U.  S., 
439) :  "  So  insolent  continued  to  be  the  whole  tone  of  Genet's  corre- 
spondence, and  so  open  his  attempts  to  stir  up  the  peoijle,  the  State 
governments,  and  the  new  Congress  about  to  assemble,  against  the  Ex- 
ecutive, that  Washington  proposed  to  the  Cabinet  to  discontinue  his 
functions  and  to  order  him  away.  He  was  himself  strongly  inclined  to 
this  course;  but  this  step,  like  that  of  publishing  the  dispatches,  was 
defeated  by  Jefferson  and  Randolph,  against  whose  imited  opinions  Wash- 
ington didnot  choose  to  act.  They  suggested  that  Genet  would  not  obey 
his  order,  and  that  such  a  step  might  revive  his  popularity  and  give 
him  (Genet  ?)  a  majority  in  the  new  Congress  soon  to  assemble.  Be- 
sides, the  measure  was  a  very  harsh  one,  and  might  expose  the  United 
States  to  a  declaration  of  war  on  the  ])art  of  France,  the  only  nation 
on  earth  sincerely  their  friend."  That  Genet  might  have  a  majority  in 
his  favor  in  Congress  was  not  a  contingency  likely  to  affect  the  judg- 
ment of  Washington ;  but  there  is  no  question  that  for  other  reasous 
he  concluded,  after  his  usual  deliberation,  not  to  adopt  the  extreme 
measures  proposed  by  Hamilton  and  Knox. 

The  Government  of  the  United  States  having  finally  asked  the  French 
Government  to  recall  Genet,  he  was  recalled  and  Fauchet  sent  in  his 
604 


CHAP.  IV.]  WHEN    MINISTER    MAY    BE    SENT    BACK.  [§  84. 

place.  On  February  21,  1794,  FaucLot  addressed  a  letter  to  Mr.  Kaii- 
dolpli,  then  Secretary  of  State,  "comnnniicatiiift'  the  order  of  the  Execu- 
tory Provisory  Council  of  the  Freii(ih  Republic;,  'to  demand  tlie  arrest 
of  M.  Geuet  and  all  tlie  other  agents  who  may  have  participated  in  liis 
faults  and  liis  sentiments.'"  I\Ir.  Kandolph  answered  that  he  wasdirected 
by  the  President  to  inform  M.  Fauchet  "that  notwilh-standing  his  sin- 
cere disposition  to  cultivate  its  (the  French  llepublic's)  friendship,  be 
thinks  his  legal  power  too  questionable  to  cause  the  arrest  to  be  made.'? 

Mr.  Eandolpli,  Sec.  of  State,  to  Mr.  Fancliet,  Fel).  27,1794.  MSS.  Notes,  For. 
Leg. 

As  to  recall  of  Genet  aud  Morris,  see  further  infra,  ^  14.-i>. 

Mr.  Fauchet,  accredited  to  take  the  place  of  Mr.  Genet,  entered  on 
his  duties  on  February  21.  1794,  and  asked  for  Mr.  Genet's  arrest,  for 
misconduct.  "Our  co-operation  was  refused  for  reasons  of  law  and 
magnanimity." 

Mr.  Pickering,  Sec.  of  State,  to  Mr.  Monroe,  June  1, 1795.  MSS.  Inst.,  Ministers. 
1  Am.  St.  Pap.  (For.  Eel.),  709. 

The  dismissal  in  180G  of  Yrujo,  the  Spanish  minister,  was  based  on 
an  attempt  on  l)is.i)arfc  to  bribe  a  news})aper  in  Phihulelphia  to  advo- 
cate the  Si)anish  view  of  the  boundary  question  then  in  controversy  be- 
tween Spain  and  the  United  States.  His  recall  was  demanded  by  IMr. 
Madison,  Secretary  of  State,  but,  at  the  request  of  his  Government,  it 
w^as  understood  that  he  was  to  be  i)ermitted  to  depart  on  the  looting  of 
a  minister  going  home  on  leave.  But  he  took  advantage  of  tliis  con- 
cession by  delaying  his  departure,  and  bovering  "about  Washington 
while  the  Spanish  question  was  still  before  Congress,  aud  uj)on  bring 
notitied  by  Madison  that  his  presence  was  disi)leasing  to  the  President 
he  published  two  insolent  replies,  announcing  that  he  shouhl  stiiy  in 
the  capital  as  long  as  he  liked.  *  *  A  bill  was  proposed  in  the  Senate 
authorizing  the  President  to  order  the  departure  of  foreign  ministers 
in  certain  cases;  which,  however,  was  dropped,  for  to  have  passed  it 
would  import  that  in  tlie  present  instance  the  Executive  had  moved 
l)recipitately." 

2  Schouler's  IJ.  S.,  108. 

As  to  recall  of  Yrujo,  Spanish  minister,  see  further  infra,  ^  106. 

Private  memoranda  by  Mr.  Madison  of  his  interviews  with  Mr.  Eose, 
in  February,1808,  are  given  in  2  Madison's  Writings,  41  ItT-  "  Mr.  Kose's 
mission  is  abortive.  Communications  on  the  subject  will  be  made  to 
Congress  in  a  day  or  two.  He  made  it  an  indispensable  preliminary  to 
his  entering  on  a  negotiation,  or  even  disclosing  the  terms  of  satis- 
faction he  had  to  offer,  that  the  proclamation  of  the  President  should 
be  i)ut  out  of  force.'  This  being  inadmissible,  it  was  proposetl  that  on 
his  disclosing  his  terms,  and  their  appearing  to  be  satisfactory,  a  re- 
peal of  the  proclamation  and  the  act  of  reparation  might  bear  the  same 
date.  His  instructions  being  a  bar  to  this,  the  correspondence  was 
closed,  with  an  intimation  that  it  rested  with  his  Government  to  decide 
on  the  case.     He  will  depart,  I  understand,  without  delay." 

Mr.  Madison,  Sec.  of  Stato  (iniofiicial),  to  ]«r.  Monroe,  Maj.  18,  180>s ;  2  Madi- 
son's Writings,  422. 

605 


§  84.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

On  JiTorember  23,  1809,  Mr.  E.  Smith,  Secretary  of  State,  in  a  letter 
to  Mr.  Pinkney,  then  minister  to  England,  instructed  Mr.  Pinkney  to 
ask  for  the  recall  of  Mr.  Jackson,  then  British  minister  at  Washington, 
on  account  of  offensive  conduct  of  Mr.  Jackson.  He  was  not,  however, 
recalled  at  the  time,  though  the  United  States  Government  declined  to 
have  further  oflBcial  communication  with  him.  On  June  30,  1810,  Mr. 
R.  Smith  wrote  to  Mr.  Pinkney  "  to  repeat  the  demand  for  the  recall  of 
Mr.  Jackson,"  and  reference  was  made  to  continued  offenses  by  Mr. 
Jackson  in  "toasts  given  by  him  at  the  public  dinners  at  Boston." 

The  primary  ground  on  which  President  Madison  demanded  the  re- 
call of  Mr.  Jackson  was  a  statement  of  Mr.  Jackson,  in  a  note  to  Mi-. 
Smith,  Secretary  of  State,  declaring  that  the  agreement  entered  into 
by  the  Administration  with  Mr.  Erskine,  who  had  preceded  Mr.  Jack- 
sou,  "was  concluded  in  violation  of  that  gentleman's  (Mr.  Erskine's) 
instructions,"  which  "were  at  the  time,  in  substance,  made  known  to 
you."  This  was  a  charge  at  once  of  falsehood  and  of  duplicity ;  since 
Mr.  Smith  has  over  and  over  again  declared  that  Mr.  Erskine's  instruc- 
tions were  not  known  at  the  time  to  the  Administration.  The  insult 
was  the  more  marked  as  Mr.  Erskine  had  himself  stated  that  he  held 
back  his  instructions  under  the  impression  that  it  was  not  his  duty  to 
impart  them.  A  joint  resolution  jiassed  Congress  sustaining  the  Ad- 
ministration in  dismissing  Mr.  Jackson,  and  declaring  the  course  of 
the  latter  to  be  indecorous  and  insulting.  Further  details  of  Mr.  Jack- 
son's misconduct  in  his  mission  are  given,  infra,  §  107. 

See  as  exhibiting  the  views  of  the  minority  in  Congress  on  this  subject,  Quin- 
cy's  Speeches,  157  ff. 

"  In  my  letter  of  the  19th  ultimo,  I  stated  to  you  that  the  declara- 
tion in  your  letter  of  the  11th  that  the  disi)atch  from  Mr.  Canning  to 
Mr.  Erskine,  of  the  23d  of  January,  was  the  only  dispatch  by  which 
the  conditions  were  prescribed  to  Mr.  Erskine  for  the  conclusion  of  an 
arrangement  on  the  matter  to  which  it  related,  was  then,  for  the  first 
time,  made  to  this  Government.  And  it  was  added  that,  if  that  dis- 
patch had  been  communicated  at  the  time  of  the  arrangement,  or  if  it 
had  been  known  that  the  propositions  contained  in  it  were  the  only 
ones  on  which  he  was  authorized  to  make  an  arrangement,  the  arrange- 
ment would  not  have  been  made. 

"  In  my  letter  of  the  1st  instant,  adverting  to  the  repetitiou  in  your 
letter  of  the  23d  ultimo  of  language  implying  a  knowledge  in  this 
Government  that  the  instructions  of  your  predecessor  did  not  authorize 
the  arrangement  formed  by  him,  an  intimation  was  distinctly  given  to 
to  you  that  after  the  explicit  and  peremptory  asseveration  that  this 
Government  had  not  any  such  knowledge,  and  that  with  such  knowl- 
edge such  an  arrangement  would  not  have  been  m^de,  no  such  insinua- 
tion could  be  admitted  by  this  Government. 

"  Finding  that  in  your  reply  of  the  4th  instant  you  have  used  lan- 
guage which  cannot  be  understood  but  as  reiterating  and  even  aggra- 
vating the  same  gross  insinuation,  it  only  remains,  in  order  to  in-eclude 
opportunities  which  are  thus  abused,  to  inform  you  that  no  further 
communications  will  be  received  from  you,  and  that  the  necessity  of 
600 


CHAP.  IV.]  WPEN   MINISTER   MAY    BE   SENT   BACK.  [§  84. 

this  deteriuiuation  will,  without  delay,  be  made  known  to  ycnir  Gov- 
irnment.  In  the  mean  time  a  ready  attention  will  be  jijiven  to  any  com- 
munications affecting-  the  interests  of  the  two  nations  through  any  other 
channel  that  may  be  substituted." 

Mr.  R.  Smitli,  Sec.  of  State,  to  Mr.  Jackson,  Nov.  8, 1809.     3  Am.  St.  Pap.  (For. 
Re].),  318.      See  infra,  ^107. 

"Mr.  Jackson  immediately  withdrew,  with  every  member  of  his  mis- 
sion, from  Washington  ;  he  made  New  York  the  place  of  his  residence. 
The  secretary  of  the  legation  was  desired  by  the  British  uiinister  to  give 
notice  of  that  circumstance  to  the  Department  of  State.  The  Govern- 
ment, without  delay,  requested  the  recall  of  Mr.  Jackson,  and  on  the 
14th  of  March,  1810,  Mr.  Pinkney,  the  American  minister  in  London, 
received  notice  that  Mr.  Jackson  had  been  directed  to  return  to  England, 
but  his  recall  was  not  accompanied  with  any  mark  of  the  displeasure  of 
his  own  Government." 

2  Lymau's  Diplomacy  of  U.  S.,  chap.  i. 

"In  the  cases  of  Erskine  and  Jackson  the  correspondence  on  his  (Mr. 
R.  Smith's)  part  had  in  a  manner  falleu  entirely  on  my  hands." 

Piesicleut  Madisou's  statement  on  the  resignation  of  Mr.  Smith,  Sec.  of  State, 
Apr.  ,1811.     2  Madison's  Writings,  499. 

The  foHowing  confidential  letters  of  President  Madison  to  Mr.  Jeffer- 
son will  be  of  use  as  illustrating  the  above : 

"The  Gazette  of  yesterday  contains  the  mode  pursued  for  reanimating 
confidence  in  the  pledge  of  the  British  Government  given  by  Mr.  Erskine 
in  his  arrangement  with  this  Government.  The  puzzle  created  by  the 
order  of  April  struck  every  one.  Erskine  assures  us  that  his  Govern- 
ment was  under  such  impressions  as  to  the  views  of  this,  that  not  the 
slightest  expectation  existed  of  our  fairly  meeting  its  overtures,  and 
that  the  last  order  was  considered  as  a  reasonable  (seasonable?)  miti- 
gation of  a  failure  of  the  experiment.  This  explanation  seems  as  extraor- 
dinary as  the  alternatives  it  shows.  The  fresh  declarations  of  Mr. 
Erskine  seem  to  have  quieted  the  distrust  which  was  becoming  i)retty 
strong,  .but  has  not  destroyed  the  effect,  of  the  ill-grace  stami^ed  on  the 
British  retreat,  and  of  the  commercial  rigor  by  the  new  and  insidious 
duties  stated  in  the  newspaper.  It  may  be  expected,  I  think,  that  the 
British  Government  will  fulfill  what  its  minister  has  stipulated,  and 
that  if  it  means  to  be  trickish,  it  will  frustrate  the  proposed  negotiation, 
and  then  say  these  orders  were  not  permanently  repealed,  but  only 
withdrawn  in  the  mean  time." 

President  Madison  to  Mr.  Jefferson,  June  20, 1809.     Coulidential  Jefferson  MSS., 
Doj).  of  State.     See  2  Madison's  Writings,  444. 

"You  will  see  by  the  instructions  to  Erskine,  as  published  by  Can- 
ning, that  the  latter  was  as  much  determined  that  there  should  be  no 
adjustment  as  the  former  was  that  there  should  be  one.  There  must, 
however,  have  been  other  instructions  comprehending  the  case  of  tlie 
Chesapeake  and  other  communications  from  Canning  accompanying  the 
British  order  of  Ajiril  2(),  as  referred  to  in  Erskine's  quieting  declara- 
tion hist  made  to  ^Ir.  Smith.  1  believe  also,  that  Erskine's  letter  to 
Canning,  not  disclosed  by  the  latter,  will  not  warrant  his  ascribing  to 
Erskine  the  statement  of  conver.sations  with  Mr.  G.  (Gallatin),  ^Ii'-  S. 

GOT 


§  84.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

(E.  Smith),  aiul  myself.     Piiikney  will  also  disavow  what  Canuing  put 
in  his  mouth." 

Same  to  same,  Aug.  'A,  1809,  ibid.     2  Madison's  Writiuga,  449. 

"Erskine  is  iu  a  ticklish  situation  with  his  Government.  I  suspect 
he  will  not  be  able  to  defend  himself  against  the  charge  of  exceediii.i;' 
his  instructions,  notwithstanding  the  appeal  he  makes  to  sundry  others 
not  published.  But  he  will  make  out  a  strong  case  against  Canunig, 
and  he  will  be  able  to  avail  himself  of  much  of  the  absurdity  and  eA'idcDt 
inadmissibility  of  the  articles  disregarded  by  him.  He  can  plead,  also, 
that  the  difference  between  his  arrangement  and  the  spontaneous  orders 
of  April  2G  is  too  slight  to  justify  the  disavowal  of  him.  This  dilier- 
ence  seems,  indeed,  to  limit  its  importance  to  the  case  of  Holland,  and  to 
consist  in  the  direct  trade  admitted  by  the  arrangement  and  an  indirect 
one  through  the  acljoiuing-  ports  requiied  by  the  orders.  To  give  imi)or- 
tance  to  this  distinction  the  ministry  must  avow,  what  if  they  were  not 
shameless  they  would  avow,  that  their  object  is  not  to  retaliate  injury 
on  an  enemy,  but  to  prevent  the  legitimate  trade  of  the  United  States 
from  interfering  with  the  London  smugglers  of  sugar  and  coffee." 

>Same  to  same,  Aug.  16,  1809,  Hid.     2  Madisou's  Writings,  451; 

"Jackson,  according  to  a  note  sent  from  Annapolis  to  Mr.  Smith, 
was  to  be  in  Washington  on  Friday  evening  last.  The  letters  from  Mr. 
Pinkney  brought  by  him  were  dated  June  23,  and  merely  rehearsed  a 
conversation  with  Canning,  from  which  it  would  seem  that  C  readily 
admitted  that  his  second  condition  (colonial  trade)  had  no  connection 
with  the  subject,  and  that  it  was  not  to  be  expected  the  United  States 
would  accede  to  the  third  (G.  B.  to  execute  our  laws).  Why,  then,  make 
them  ulfimata,  or,  if  not  ultimata.,  why  reject  the  arrangement  of  E.  (Ers- 
kine) for  not  including  them.  For  as  to  the  first  article,  if  he  does  not 
fly  from  his  language  to  P.,  the  continuance  of  the  non-intercourse  vs. 
France,  cannot  be  denied  to  be  a  substantial  fulfillment  of  it.  From 
his  view  of  the  matter,  it  might  be  inferred  that  Jackson  came  with  a 
real  olive  in  his  hand.  But  besides  the  geueral  slipperiness  of  his  su- 
perior, some  ideas  fell  from  him  in  his  conversation  with  P.  justifying 
distrust  of  his  views." 

Same  to  same,  Sept.  11,  1809,  ihid.     2  Madison's  Writings,  453.     See  fiitther  Mr. 
Madison  to  Mr.  Pinkney,  Jan.  20,  1810.     2  Madison's  Writings,  468/. 

"  The  long  debates  on  the  resolution  of  Mr.  Giles,  on  the  subject  of 
Mr.  Jackson,  have  terminated  in  affirmative  votes,  by  large  majorities. 
This,  with  the  refusal  of  the  Executive  to  hold  communication  with 
him,  it  is  supijosed,  will  produce  a  crisis  in  the  British  policy  towards 
the  United  States,  to  which  the  representations  of  the  angry  minister 
will  doubtless  be  calculated  to  give  an  unfavorable  turn.  Should  this 
happen,  our  precautionary  views  will  have  been  the  more  seasonable. 
It  is  most  probable,  however,  that  instead  of  expressing  resentment  by 
open  war,  it  will  appear  in  more  extended  depredations  on  our  com- 
merce, in  declining  to  replace  Mr.  Jackson,  and,  perhaps,  in  the  course 
observed  with  respect  to  you,  in  meeting  which  your  judgment  will  be 
the  best  guide." 

JrTesident  Madison  to  Mr.  Pinkney,  minister  at  London,  Jan.  20,  1810.    2  Madi- 
son's Writings,  469. 

608 


CHAP.  IV.]  WHEN    MINISTER    MAY    BE    SENT    BACK.  [§  84. 

"  From  the  maiiDer  in  wliicli  the  vacancy  loft  by  Jacksou  is  provided 
for,  it  is  inferred  that  a  sacrifice  is  meant  of  the  respect  belonging  to 
this  Government,  either  to  the  pride  of  the  British  Government,  or  to 
the  feelings  of  those  who  have  taken  side  with  it  against  their  own. 
On  either  supposition,  it  is  necessary  to  counteract  the  ignoble  pur- 
pose. You  will  accordiiioly  find  that  on  ascertaining  the  substitution 
of  a  charge  to  be  an  intentional  degradation  of  the  diplomatic  inter- 
course on  the  part  of  Great  Britain,  it  is  deemed  proper  that  no  higher 
functionary  should  represent  the  United  States  at  London.  I  sincerely 
wish,  on  every  account,  that  the  views  of  the  British  Government,  in 
this  instance,  may  not  be  such  as  are  denoted  by  appearances,  or  that, 
on  finding  the  tendency  of  them,  they  may  be  changed.  However  the 
fact  may  turn  out,  you  will,  of  course,  not  lose  sight  of  the  expediency 
of  mingling  in  every  step  you  take  as  much  of  moderation,  and  even 
of  conciliation,  as  can  be  justifiable;  and  will,  in  particular,  if  the 
present  dispatches  should  find  you  in  actual  negotiation,  be  gcverned 
by  the  result  of  it  in  determining  the  question  of  your  devolving  your 
trust  on  a  secretary  of  legation." 

President  Madison  to  Mr.  Pinkney,  minister  at  London,  May  23,  1810.    2  Madi- 
son's Writings,  474. 

According  to  Sir  A.  Alison,  the  refusal  of  the  British  ministry  to 
"ratify  this  arrangement"  (that  of  Erskine),  "although  fully  justified 
in  point  of  right  by  Napoleon's  violence,  and  by  Mr.  Erskine's  deviation 
from  his  instructions,  may  now  well  be  characterized  as  one  of  the 
most  unfortunate,  in  point  of  expediency,  ever  adopted  by  the  British 
Government." 

10  Alison's  Hist,  of  Europe,  650.     See  infra,  $$  107,  1506. 

Mr.  Jackson's  course  in  other  respects  is  noticed  more  fully  infra., 
§107. 

Mr.  li.  Smith's  explanation  to  Mr.  Pinkney  of  the  dismissal  of  Mr. 
Jackson  is  in  3  American  State  Papers  (Foreign  Belations),  318,/'. 
Mr.  Pinkney's  letter  to  Lord  Wellesley,  requesting  Mr,  Jackson's  re- 
call, is  giv^en  in  same  volume,  353,^.  Lord  VVellesley's  reply  is  in  same 
volume,  355  ff.  In  this  reply  itis  said  that  ''  His  Majesty  is  always 
disposed  to  pay  the  utmost  attention  to  the  wishes  and  sentiments  of 
states  in  amity  with  him,  and  has,  therefore,  been  pleased  to  direct  the 
return  of  Mr.  Jackson  to  England.  But  His  Majesty  has  not  marked 
with  any  expression  of  his  displeasure  the  concluct  of  Mr.  Jai^kson, 
whose  integrity,  zeal,  and  ability  have  long  been  distinguished  in  His 
Majesty's  service,  and  who  does  not  appear,  on  the  present  occasion,  to 
have  committed  any  intentional  ofiense  against  the  Government  of  the 
United  States." 

See  7  Wait's  St.  Pap.,  283,  295;  Lawrouce's  Wlieatou  (ed.  1863),  437. 
As  to  alleged  insults  to  Mr.  Jackson,  see  infra,  ^^  94,  107. 

The  Government  of  the  United  States  will  acquiesce  in  a  demand  of 
a  foreign  Government  for  the  recall  of  a  minister  who  is  personally  un- 
acceptable to  such  Government. 

Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Poins.tt.  Od.  ir,,  1820      MSS.  Inst.,  Am. 

States. 

609 
S.  Mis.  1G2— VOL.  I 30 


§  84.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

The  publication  by  a  foreign  minister,  during  Lis  official  term,  of  a 
document  charging  the  United  States  with  bad  faith,  will  be  ground  to 
demand  his  recall ;  and  if  it  be  subsequently  sustained  by  his  Govern 
ment,  this  will  be  regarded  by  the  United  States  as  a  gross  indignity. 

Mr.  Forsyth,  Sec.  of  State,  report  to  President  of  Dec.  2,  1837.  MSS.  Report 
Book.     See  supra,  ^  79. 

It  is  within  the  province  of  a  Government  to  whom  a  minister  is 
accredited  to  request  his  recall,  and  this  request,  when  personal  to  the 
minister  himself,  will  be  complied  with. 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Jewett,  Mar.  19,  1847.     MSS.  Inst.,  Peru. 

While  the  right  of  a  sovereign  to  require  the  recall  of  an  offensive 
minister  sent  to  him  is  generally  recognized,  a  qualification  is  recog- 
nized in  cases  where  the  request  is  based  on  a  charge  of  an  ofi'ense 
alleged  to  have  been  committed  by  such  minister  of  which  offense  the 
Government  commissioning  him  holds  him  to  be  innocent.  In  such 
case  no  recall  based  on  this  assumption  of  such  offense  will  be  granted. 

Mr.  Buchanan,  Sec.  of  State,to  Mr.  Leal,  Aug.  30,  1847.    MSS.  Notes,  Brazil. 

"In  1849,  an  exciting  diplomatic  correspondence  took  i)lace  between 
Mr.  Clayton,  Secretary  of  State,  and  Mr.  Poussin,  minister  plenipoten- 
tiary of  France,  named  by  the  provisional  Government.  Though  this 
occurrence  occasioned  some  delay  in  the  reception  of  the  letters  of  cre- 
dence of  the  American  minister,  Mr.  Kives,  the  French  Government 
disavowed  and  recalled  its  minister.     Lesur,  Annuaire,  1849,  6(io." 

Lawrence's  Wheaton  (ed.  1863),  438. 

Mr.  Webster's  report  of  June  23,  1852,  on  the  withdrawal  of  Mr.  Hiilsemanu  as 
charg6  d'affaires  for  Austria,  is  given  in  Senate  Ex.  Doc.  No.  92,  32d  Cong., 
Ist  sess.     See  also  Senate  Ex.  Doc.  No.  9,  Slst  Cong.,  1st  sess.,  supra,  $  48. 

Persistent  enlisting  in  the  United  States  of  soldiers  to  serve  in  the 
British  army  against  Russia  by  British  agents,  with  the  connivance  of 
the  British  minister,  and  of  certain  British  consuls,  is  an  invasion  of 
the  sovereignty  and  neutrality  of  the  United  States  which  will  justify 
a  request  to  the  British  Government  to  recall  the  minister  and  consuls 
concerned. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchanan,  June  9,  1855;  MSS.  Inst.,  Gr.  Brit. 

Same  to  same,  July  15,  1855.   Same  to  same,  Oct.  1,  1855 ;  Oct.  15, 1855  ;  Oct. 

31,  1855 ;  Nov.  12,  18.55  ;  Dec.  28,  1855 ;  Apr.  22,  1856.    Mr.  Marcy  to  Mr. 

Dallas,  May  27,  1856 ;  June  16,  1856. 
As  to  prosecutions  for  enlisting  in  the  United  States  under  such  circumstances, 

see  infra,  U  387,  395,  404. 

A  foreign  minister  who  engages  in  the  enlistment  of  troops  here  for 
his  Government  is  subject  to  be  summarily  expelled  from  the  country, 
or,  after  demand  of  recall,  dismissed  by  the  President. 

7  Op.,  3G7,  Gushing,  1855. 

See  as  to  cessation  of  intercourse  with  British  minister,  House  Ex.  Doc.  No. 
107,  34th  Cong.,  Ist  sess. 

610 


CHAP.  IV.]  WHEN   MINISTER   MAY    BE    SENT    BACK.  [§  84. 

"  The  conduct  of  Mr.  Catacazy,  the  Kussiau  minister  at  Washing- 
ton, having  been  for  some  time  past  such  as  materially  to  impair  his 
usefulness  to  his  own  Government,  and  to  render  intercourse  with  him 
for  either  business  or  social  purposes  highly  disagreeable,"  Mr.  Curtin, 
minister  to  Russia  from  the  United  States,  was  instructed  to  intimate 
to  the  Kussian  Government  that  "  under  the  circumstances  the  President 
is  of  the  opinion  that  the  interests  of  both  countries  would  be  promoted 
and  those  relations  of  cordiality  with  the  Governmeiitof  the  Czar,  of  the 
importance  of  which  he  is  well  aware,  would  be  jilaced  upon  a  much 
surer  footing  '  if  the  head  of  the  Russian  legation  here  was  to  be 
changed.' " 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Curtin,  June  16,  1871.    MSS.  Inst.,  Russia. 

"The  hesitation  and  delay  in  complying  with  the  request  directed  in 
dispatch  of  16th  June  occasion  disquiet  and  disappointment.  The  rea- 
son alleged  not  satisfactory,  as  coiiimunication  with  minister  for  foreign 
affairs  is  open.  Decision  important  before  the  ad\'entof  the  prince,  as 
the  President  cannot  be  expected  to  receive  as  the  principal  attendant 
of  his  highness  one  who  has  been  abusive  of  him,  and  ia  personally 
unacceptable.     Instruction  of  this  date  to  you  on  the  subject." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Curtin,  Anj;.  18,  1871.     (Telegram.)    MSS.  Inst., 
Russia. 

"  It  is  believed  to  be  usual  when  a  minister  shall  have  made  himself 
so  unacceptable  to  the  Government  to  which  he  is  accredited  as  to  have 
forfeited  the  confidence  of  that  Government,  and  to  have  rendered  in- 
tercourse with  him  disagreeable,  for  the  Government  promptly  to  recall 
him  upon  the  mere  intimation  of  a  wish  to  that  effect.  This  has  inva- 
riably been  done  in  other  similar  instances  which  have  occurred  in  the 
history  of  this  Government.  It  will  be  a  cause  of  much  pain  to  the 
President  if  the  Imperial  Government  should  think  proper  to  adopt  a 
different  course  on  this  occasion." 

Mr.    Davis,  Acting  Sec.  of  State,  to   Mr.  Curtin,  Aug.    18,  1871.     MSS.  Inst., 
Russia. 

"Every  Government  has  the  right  to  have  the  representative  of 
another  power  an  acceptable  person,  and  no  Government  has  the  right 
to  expect  of  another  the  retention  of  a  representative  who  indulges  in 
personal  abuse  of  the  head  of  the  Government  to  which  he  is  accredited, 
as  Mr.  Catacazy  has  done.  You  may  read  this  to  the  vice-chancellor." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Curtin,  Sept.  5,  1871.     MSS.  Inst.,  Russia. 

"  The  President,  desiring  to  manifest  the  sincerity  of  his  friendship 
for  the  Russian  .Government,  and,  in  view  of  the  expected  visit  of  the 
grand  duke  and  of  the  alleged  impossibility  of  sending  another  miuis- 
ter  to  replace  the  one  now  here  in  season  to  accompany  the  prince,  has 
decided  to  tolerate  the  present  minister  until  after  the  visit  of  the 
prince.    That  minister  will  then  be  dismissed,  if  cot  recalled.    The 


$  85.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

President,  however,  will  not  foimally  receive  Mr.  Catacazy,  except 
when  he  accompanies  the  prince,  and  can  hold  no  conversation  with 
him. 

"You  will  communicate  this  to  the  vice-chancellor  immediately,  and 
may  read  it  to  him." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Ciirtin,  Sept.  20,  1871,     MSS.  Inst.,  Russia. 

After  the  Government  of  the  United  States  has  requested  the  recall 
of  a  foreign  minister,  if  there  bo  delay  or  difficulty  in  obtaining  such 
recall,  his  passports,  in  case  of  continued  misconduct  on  his  part,  may 
be  sent  to  him  forth v<'ith. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Catacazy,  Nov.  10,  16,  1871.     MSS.  Notes,  Rus- 
sia. 

"The  official  or  authorized  statement  that  a  minister  has  made  him- 
self unacceptable,  or  even  that  he  has  ceased  to  be  '•persona  grata,^  to 
the  Government  to  which  he  is  accredited,  is  sufficient  to  invoke  the 
deference  of  a  friendly  power  and  the  observance  of  the  courtesy  and 
the  practice  regulating  the  diplomatic  intercourse  of  the  powers  of 
Christendom  for  the  recall  of  an  objectionable  minister.  The  declara- 
tion of  the  authorized  representative  of  the  i)ower  to  which  an  offending 
minister  is  accredited  is  all  that  can  properly  be  asked,  and  all  that  a 
self  respecting  power  could  give." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Curtin,  Nov.  16,  1671.     MSS.  Inst.,  Russia. 

As  to  recall  on  ground  of  extraneous  publications,  see  supra,  §  79. 

As  to  Catacazy's  retirement,  see  further  Mr.  Fish's  Report  of  Dec.  6, 1871,  Senate 

Ex.  Doc.  No.  5,  42d  Cong.,  2d  sess.     Mr.  Fish,  Sec.  of  State,  to  Mr.  Brown, 

Oct.  10,  1871 ;  MSS.  Inst.,  Turkey. 

IX.  MODE  OF  PRESENTATION  AND  TAKING  LEAVE. 

§85. 

Mr.  Monroe,  having  been  recalled  from  France  in  the  fall  of  1796,  his 
place  was  taken  by  Mr.  C  C.  Pinckney,  who  arrived  in  Paris  in  Decem- 
ber in  that  year.  The  day  after  Mr.  Pinckney's  arrival,  on  December  12, 
Mr.  Monroe  and  Mr.  Pinckney  visited  De  la  Croix,  the  French  minister 
of  foreign  affairs,  who  took  little  pains  to  conceal  his  belief  that  Pinck- 
ney had  been  sent  to  supersede  Monroe  on  account  of  the  latter's  kindly 
feeling  to  France.  A  few  days  afterwards  Mr.  Monroe  received  a  formal 
notification  that  Mr.  Pinckney  would  not  be  received  until  the  grievances 
complained  of  by  France  were  redressed ;  and  Mr.  Monroe's  position 
was  made  peculiarly  embarrassing  by  the  fact  that  this  communication 
was  coui^led  with  a  profusion  of  compliments  to  himself.  At  that  time 
no  stranger  could  remain  in  France  without  i)olice  permission.  Not 
only  did  the  Government  refuse  to  recognize  Mr.  Pinckney  as  minister, 
but  he  was  informed,  on  January  25,  that  he  could  not  remain  in  Paris 
without  this  police  permission,  and  on  February  3  he  was  further  in- 
formed that  by  remaining  he  made  himself  liable  to  arrest.  He  accord- 
ingly obtained  his  pass[)orts  and  left  France  lor  Holland.  jMr.  Monroe 
has  been  charged  with  want  of  dignity  in  accepting  conspicuous  hospi- 

613 


CHAP.  IV.]     PRESENTATION  AND  TAKING  LEAVE.         [§  85. 

tality  from  the  French  Governmeiil  after  his  successor  had  been  thus 
repelled.  But  the  farewell  reee]>tion,  in  whieh  this  i)eculiar  adulation 
was  bestowed  on  Mr.  Monroe,  was  on  December  .JO,  three  weeks  before 
either  he  or  Mr.  Pinckney  were  advised  of  Mr.  Pinckney's  tinal  rejection. 
In  Mr.  Tickuor's  Life  (vol.  2,  41  ;5),  ue  are  told  that  Baron  Pichon,  when 
attempting-,  in  1837,  to  explain  the  conduct  of  the  Directory,  intimated 
that  Mr.  Monroe  had  spoken  of  ?»lr.  ]*inckney  as  of  aristocratic  tenden- 
cies. Memory  after  the  lapse  of  forty  years  cannot  be  relied  on,  and 
it  is  not  unlikely  that  Mr.  Pichon  confused  Mr.  Monroe's  statements 
with  his  own  prejudices.  It  is  certain  that  Mr.  Pinckney's  letters  to  the 
Department  speak  in  the  highest  teinisof  the  generous  and  delicate 
assistance  he  received  from  Mr.  Monroe  while  they  were  together  in 
France.  Mr.  Pinckney  was  too  discerning  and  uninipassione<l  to  have 
been  imposed  on  by  mere  professions  of  support;  Mr.  Monroe  too  hon- 
orable to  profess  a  support  he  did  not  give. 

See  1  Schooler's  Hist.  U.  S.,  347;  5  Hildreth,  U.  S.,  4G.     See  further  details 

infra,  §  14HZ>. 
As  to  ceremonial  in  respect  to  diplomatic  agents,  see  9  John  Adams'  Works,  271, 

quoted  supra,  §  81. 
Mr.  J.  Adams'  account  of  his  presentation  to  George  III  and  the  Queen  is  given 

in  detail  in  1  Lyman's  Dijdomacy  of  the  U.  S.,  159  ff. 
The  details  of  the  reception  of  Gerard,  the  first  French  minister  to  the  U.  S., 

on  July  1778,  are  given  in  1  Lyman's  Diplomacy  of  the  U.  S.,  57. 

u  "When  a  foreign  minister  arrives  a.t  London,  Paris,  St.  Petersburg,  or 
other  European  court,  he  obtains  an  interview  of  the  secretary  of  state 
for  foreign  affairs,  and  delivers  to  him  a  copy  of  his  letter  of  credence. 
The  secretary  of  state  afterwards,  on  a  day  fixed,  presents  him  to  the 
sovereign,  to  whom  he  delivers  the  original.  On  that  day,  or  as  soon  as 
convenient,  he  visits  all  the  secretaries  or  heads  of  the  Government. 

"  The  foreign  minister's  wife,  who  has  claims  incident  to  the  station 
of  her  husband,  makes  a  visit  at  the  same  time  to  the  wives  of  the  sec- 
retaries or  heads  of  the  Government. 

^'When  foreign  ministers  leave  the  seat  of  government,  to  travel  in 
the  interior,  they  give  notice  of  it  to  the  secretary  of  state  for  foreign 
affairs.     They  likewise  give  notice  of  their  return  home." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Serurier,  May  5,  1814.     MSS.  Notes  For.  Leg. 

"Mr.  Daschkoff  came  to  tell  me  that  he  had  at  length  received  his 
letters  of  credence.  He  meant  of  recall.  This  is  a  mistake  so  common 
that  there  is  a  confusion  of  ideas  prevalent  among  three  fourths  of  the 
di[)lomatic  characters  I  know.  Letters  of  recall  are  received  by  a  min- 
ister from  his  own  Government.  Letters  of  recredence  are  froui  the 
Government  to  which  he  is  accredited  to  his  own,  recommending  him 
back  to  his  own  master." 
4  J.  Q.  Adams'  Mem.,  231. 

Although  the  mission  of  a  minister  ordinarily  terminates  with  his 
delivery  of  a  letter  of  recall,  this  is  open  to  many  exceptions.  "  The 
more  usual  jn-actice  has  been  for  the  succeeding  minister  to  present  the 
letter  recalling  his  predecessor."    Hence  an  omission  to  send  the  retir- 

«13 


§  85.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

ing  minister  a  letter  of  recall,  does  not  in  itself  sustain  a  minister  in 
remaining  at  his  post  after  the  period  fixed  for  his  return. 

Mr,  Forsyth,  Soc.  of  State,  to  5tli  Auditor,  July  5,  1840.     MSS.  Dom.  Let. 

"The  diplomatic  agents  who  are  accredited  to  the  President  usually 
transmit  to  the  Department  a  copy  of  their  letter  of  credence,  with  a 
note  requesting  the  appointment  of  a  time  for  them  to  present  the  orig- 
inal. A  copy  of  the  remarks  which  they  may  think  proper  to  make  on 
the  occasion,  frequently  accompanies  their  note  asking  for  a  presenta- 
tion, and  is  submitted  to  the  President  in  order  that  he  may  prepare  a 
suitable  reply.  It  has  not  of  late  been  deemed  necessary  to  write  out 
this  answer.  The  Secretary  of  State  usually  accompanies  the  diplomatic 
agent  to  the  President  on  his  first  presentation,  but  this  is  not  deemed 
necessary  on  subsequent  occasions." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Almonte,  Jan.  27, 1855.    MSS.  Notes,  Mex. 

"  This  Department  tinderstands  that  intercourse  between  a  diplomatic 
agent  and  the  Government  to  which  he  may  have  been  accredited,  is 
not  always  terminated  only  by  the  presentation  of  the  letters  of  recall 
of  such  agent.  There  are  several  other  ways  in  which  such  intercourse 
may  be  concluded.  Whether  this  shall  be  brought  about  in  one  way 
or  in  another,  diplomatic  immunities  for  the  retiring  agent  may  undoubt- 
edly be  claimed  for  a  reason  able  time  after  his  official  functions  shall  be 
at  an  end.  That  period,  however,  must  depend  upon  circumstances  of 
which  the  Government  to  which  he  had  been  accredited  is  to  be  the 
judge.  The  main  object  for  which  the  privilege  is  allowed  is  to  enable 
the  diplomatic  representative  to  adjust  his  private  affairs,  and  to  depart 
the  country  without  annoyance.  If,  however,  the  privilege  shall  be 
abused  by  an  undue  lingering  in  the  country  by  such  agent  after  his 
official  functions  are  at  an  end,  the  Government  of  that  country  is  jus- 
tified in  regarding  the  immunities  as  forfeited.  It  is  hoped,  however, 
that  there  may  be  no  occasion  to  apply  this  rule  in  the  case  of  Mr. 
Catacazy." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Gorloflf,  Deo.  1, 1871.     MSS.  Notes,  Russia. 

"Your  dispatch  of  the  28th  of  March,  marked  '■  Separate^^  in  relation 
to  the  presentation  by  you  at  the  courts  of  Bavaria,  Wurtemberg,  Baden, 
and  Hesse  of  letters  of  recall  on  the  occasion  of  your  retirement  from 
the  post  at  Berlin,  has  been  received,  and  the  subject  has  been  care- 
fully considered. 

"On  examination  of  the  precedent  established  in  the  case  of  Mr. 
Wheaton,  who  while  minister  at  Berlin  was  empowered  to  conclude 
treaties  with  other  German  states,  it  is  found  that  it  was  not  deemed 
expedient  at  that  time  to  authorize  Mr.  Wheaton  to  present  special  let- 
ters of  recall.  The  Department  regards  the  decision  then  made  as  cor- 
rect, and  adheres  to  it  in  the  present  case. 

"Letters  of  recall  to  the  Emperor  of  Germany  are  inclosed,  and  in 
614 


Chap,  iv.]    peesentation  and  taking  leave.      [§  85. 

presenting  them  you  will  express  to  the  Emperor  tlie  satisfaction  with 
which  the  President  entertains  the  conviction  that  your  mission  has 
tended  to  cement  the  cordial  relations  of  amity  and  good  feeling  which 
he  desires  to  maintain  and  preserve  between  two  ])0wers  which  have 
become  kindred  in  every  sense  of  the  word." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bancroft,  Apr.  21, 1874.     MSS.  Inst..  Germ. ;  For. 
Rel.,  1874. 

"In  most  cases,  a  mission  of  the  United  States  will  be  found  already 
established  at  the  seat  of  government,  and  still  in  charge  of  tlie  out- 
going representative,  or  of  a  charg6  d'affaires  ad  interim.  In  either 
case,  the  newly-arrived  agent  should  seek,  through  the  actual  incum- 
bent of  the  mission,  an  informal  conference  with  the  minister  for  for- 
eign affairs,  or  such  other  officer  of  the  Government  to  which  he  is 
accredited  as  may  be  found  authorized  to  act  in  the  premi.ses,  and 
arrange  with  him  for  his  official  reception.  He  should  at  the  same 
time,  in  his  own  name,  address  a  formal  note  to  the  minister  for  foreign 
affairs,  communicating  the  fact  of  his  appointment  and  his  rank,  and 
requesting  the  designation  of  a  time  and  i>lace  when  he  may  present 
his  letter  of  credence, 

"  Should  the  diplomatic  agent  be  of  the  grade  of  envoy  extraordinary 
and  minister  plenipotentiary  or  minister  resident,  in  either  of  which 
cases  he  will  bear  a  letter  of  credence,  signed  by  the  President  and 
addressed  to  the  chief  of  the  Government,  he  will,  on  asking  audience 
for  the  puri^oseof  presenting  the  original  in  pei>on,  communicate  to  the 
minister  for  foreign  affairs  the  open  office  copy  which  accompanies  his 
original  instructions.  He  will  also,  for  the  completion  of  tbe  archives 
of  his  legation,  i^repare  and  retain  on  file  a  copy  of  his  credentials. 

"If,  however,  the  agent  be  of  the  rank  of  charg^  d'affaires,  bearing 
a  letter  of  credence  address(5d  to  the  minister  for  foreign  affairs,  he 
will,  on  addressing  to  the  minister  the  formal  note  prescril^ed  in  sec- 
tion 23,  communicate  to  him  the  office  copy  of  his  credential  letter,  and 
await  the  minister's  pleasure  as  to  receiving  the  original  in  a  personal 
interview. 

"Oh  the  occasion  of  presenting  ceremonial  letters  of  recall  or  of  cre- 
dence to  the  head  of  the  Government,  it  is  usual  at  most  capitals  for 
the  retiring  or  incoming  diplomatic  agent  to  make  a  brief  address,  per- 
tinent to  the  occasion.  This  address  should  be  written  and  spoken  in 
the  English  tongue  by  the  representative  of  tlie  United  States. 

"  Before  the  day  fixed  for  his  audience  of  reception  or  of  leave-taking, 
he  should  furnish  to  the  minister  for  foreign  affairs  a  copy  ot*  his  i)ro- 
posed  remarks,  in  order  that  a  suitable  reply  thereto  may  be  prepared. 

"A  copy  of  the  address  and  of  the  reply  must  be  sent  to  the  Depart- 
ment of  State. 

"When  the  retiring  representative  is,  like  his  successor,  of  the  grade 
of  envoy  extraordinary  and  minister  plenipotentiary  or  minister  resi- 
dent, itis  customary  for  him  to  present  his  letter  of  recall  in  the  sau)e 
audience  in  which  his  successor  ])resents  his  credential  letter,  unless 
for  some  sufficient  cause  he  should  have  been  obliged  to  take  formal 
leave  and  present  his  letter  of  recall  before  the  presentation  of  his  suc- 
cessor. 

"It  sometimes  happens  that  the  retiring  diplomatic  agent  may  not 
have  received  his  letter  of  recall  from  the  Department  of  State  in  sea- 
son to  present  it  in  person  before  his  departure.     In  such  cases  his  suc- 

615 


§  86.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

cessor  or,  if  need  be  (after  receiving  special  instructioDs  to  that  effect), 
the  charge  d'affaires  ad  interim,  when  there  is  one,  will  present  the  let- 
ter of  recall  in  such  manner  as  may  be  indicated  to  him  by  the  minister 
for  foreign  affairs." 

Printed  Pers.  Inst.  Dip.  Agents,  1885. 

"  On  arriving  at  his  post,  the  minister's  first  duty  is  to  inform  the  min- 
ister of  foreign  affairs  of  his  arrival  and  of  his  character,  and  to  request 
an  interview  for  the  purpose  of  asking  an  audience  for  the  purpose  of 
presenting  his  credentials  to  the  head  of  the  state.  He  is  usually  re- 
ceived at  once  by  the. minister,  and  by  the  sovereign  as  soon  as  an  inter- 
view can  be  arranged,  though  in  case  of  absence  or  ilhiess  there  may  be 
a  delay  of  weeks,  if  not  of  months.  Etiquette,  however,  demands  that 
the  audience  for  presenting  credentials  should  take  place  as  early  as 
possible.  These  audiences  are  either  public  or  private.  In  the  first,  the 
minister  is  accompanied  by  the  minister  of  foreign  affairs,  generally 
followed  by  his  own  secretaries,  and  goes  to  the  palace  in  more  or 
less  state,  according  to  the  customs  of  the  place ;  for  these  vary  greatly 
in  different  cajjitals.  For  an  ambassador  a  state  carriage  is  always 
sent.  This  is  not  always  the  case  with  the  minister  in  a  capital  where 
ambassadors  also  reside,  it  being  considered  desirable  to  draw  distinc- 
tions of  ceremony  between  the  two.  In  small  countries,  where  there 
are  no  ambassadors,  a  state  carriage  is  usually  sent  for  the  minister,  in 
some  places  accompanied  by  an  escort.  At  a  formal  audience  all 
parties  are  standing;  the  minister  enters,  is  introduced  to  the  sovereign 
by  the  minister  of  foreign  affairs,  addresses  a  few  words  to  him  stating 
his  character,  and  presents  his  letters  of  credence.  These  the  sovereign 
takes,  sometimes  goes  through  the  formality  of  reading  them,  and  re- 
plies briefly  to  the  minister.  After  the  formal  part  of  the  audience  is 
over,  there  is  generally  a  friendly  conversation  of  a  few  moments,  and 
the  ceremony  ends  in  much  the  same  way  as  it  began.  In  some  coun- 
tries it  is  exi^ected  that  a  formal  speech  will  be  made  by  the  minister  to 
the  sovereign,  and  a  formal  reply  made.  In  such  cases  the  speech  is 
written  out  in  advance  and  given  to  the  minister  of  foreign  affairs,  who 
returns  a  copy  of  the  reply  before  the  audience  takes  place.  This  is 
in  order  to  prevent  embarrassment,  as  well  as  to  see  that  nothing  un- 
pleasant be  said.  In  some  countries,  as  in  Russia,  a  minister  is  nearly 
always  received  in  private  audience.  He  goes  to  the  palace  alone,  is 
met  by  the  grand  master  of  ceremonies,  conducted  to  the  Emperor,  in- 
troduced into  his  room,  and  is  left  alone  with  him.  After  a  word  or 
two  the  Emperor  requests  the  minister  to  be  seated;  and  the  conversa- 
tion is  informal." 

Schuyler's  Am.  Dip.,  136-138. 

X.  INCUMBENT  CONTINUES  UNTIL  ARRIVAL  OF  SUCCESSOR. 

§86. 

A  foreign  minister  of  the  United  States  is  not  ordinarily  displaced  by 
the  appointment  of  a  successor  until  the  latter  enters  upon  his  duties. 

13  Op., 300,  Akerraan,  1870. 

General  Schenck  on  the  17th  February,  1876,  tendered  his  resignation 
as  minister  to  London,  to  take  effect  on  the  arrival  of  his  successor. 
616 


CHAP.  I.]  WHEN    INCUMBENT    HOLDS    OVER.  [^  86. 

Before  liis  letter  of  resignation  arrived,  and  on  the  21st  February, 
1876,  lie  sent  a  telegram  asking  leave  of  absence  to  rei)air  to  Washington, 
which  leave  was  given  on  23d  February.  On  March  0  the  Secretary 
of  State  wrote  to  General  Schenck  that  his  resignation  was  accei)ted. 
Before  this  letter  reached  London  Gener;il  Schenclc  was  on  his  way  to 
Washington.  On  17th  February  the  name  of  Mr.  Dana  was  sent  to  the 
Senate  as  successor  to  General  Schenck,  the  message  stating  that  the 
nomination  was  in  place  of  General  Schenck,  "  resigiied."  It  was  held 
that  when  the  resignation  was  tendered,  and  the  time  at  which  it  is  to 
take  effect  specifically  named  in  the  resignation,  the  acceptance  of  the 
resignation  without  qualification  was  an  acceptance  with  the  condition 
attached.  It  was  at  the  same  time  held  that  if  General  Schenck  had 
remained  in  England  he  Avould  have  continued  to  be  minister  until  the 
arrival  of  his  successor;  but  having  subsequently  obtained  leave  of 
absence,  and  having  returned  in  pursuance  of  that  leave,  he  ceased  to 
be  minister  on  the  nomination  and  confirmation  of  his  successor. 

15  Op.,  911,  Pierrepont,  1876. 

"  Eesignation  while  at  the  agent's  post  is  always  understood  to  take 
effect  on  his  being  relieved  by  his  successoi'.  If  desired  to  take  effect 
sooner,  the  circumstance  should  be  stated  in  the  letter  of  resignation, 
and  be  so  accepted,  before  the  incumbent  quits  his  post. 

"  Eesignation  while  on  leave  of  absence  in  the  United  States  is  under- 
stood to  take  effect  from  the  date  of  its  acxeptance. 

"  If  the  diplomatic  agent  tender  his  resignation  while  absent  from  his 
post  on  leave,  but  not  in  the  United  States,  it  is  understood,  unless 
otherwise  stated,  that  he  will  return  to  his  mission  on  the  termination 
of  his  allotted  leave  and  await  the  arrival  of  his  successor;  but  if  his 
successor  reach  the  seat  of  the  mission  before  the  termination  of  the 
agent's  leave  of  absence,  his  resignation  and  his  leave  of  absence  take 
effect  and  determine  on  the  entrance  of  his  successor  upon  the  duties  of 
his  office  by  presentation  of  his  credentials. 

"If  a  diplomatic  agent,  having  received  leave  of  absence  (with  or 
without  ])ermission  to  return  to  the  United  States),  tender  his  resigna- 
tion to  take  effect  at  the  expiration  of  his  leave  of  absence,  it  may  be  so 
accepted,  provided  the  demands  of  the  i)ublic  service  do  not  re(iuire 
that  the  vacancy  be  sooner  filled ;  and  if  so  filled,  the  retiring  otficer's 
leave  shall  be  held  to  terminate  thereby. 

"A  diplomatic  agent  may  be  transferred  to  another  post,  either  upon 
his  own  application,  if  circumstances  make  it  advisable  to  accede  to  his 
request,  or  in  the  discretion  of  the  President.  If  the  latter  be  the  case, 
his  non-acceptance  of  the  arrangement  does  not  give  him  any  chiim  to 
remain  in  his  former  oflice. 

"A  recall  is  usually  accomplished  at  the  i)leasure  of  the  President, 
during  a  session  of  the  Senate,  by  sending  to  that  body  the  nomination 
of  the  officer's  successor.  Upon  the  confirmation  and  commission  of 
his  successor  the  original  incumbent's  office  ce;ises.  He  is,  however, 
expected  to  remain  at  his  post  until  duly  relieved.  If  circumstances 
require  otherwise,  the  case  must  be  governed  by  the  special  instructions 
of  the  Secretary  of  State.  In  any  case  his  official  functions  do  not  cease 
until  he  has  received  notiflcatiou  of  the  appointment  of  his  successor, 

617 


$  87.]  tUPLOMATIC    AGENTS.  [cHAP.  IV 

either  by  specific  instructiou  of  the  Department  of  State  or  by  the  exhi- 
bition of  his  successor's  commission. 

"A  diplomatic  officer  may  be  recalled  while  on  leave  of  absence,  and 
his  successor  appointed,  as  above.  In  such  case,  his  office,  and  with  it 
his  leave  of  absence,  ceases  on  the  receipt  by  him  of  official  notification 
of  the  fact. 

Printed  Pers.  Inst.  Dip.  Agents,  1885. 

XI.    HOW   FAR    DOMESTIC    CHANGE    OF    GOVERNMENT   OPERATES    TO 

RECALL. 

§87. 

"  The  maxim  of  the  President  toward  France  has  been  to  follow  the 
Government  of  the  people.  Whatsoever  regimen  a  majority  of  them 
shall  establish  is  both  de  facto  and  de  jure  that  to  which  our  minister 
there  addresses  himself." 

Letter  from  Depfc.  of  State  to  Mr.  Adiims,  Feb.  27,  1795,  approved  and  applied 
to  the  duty  of  the  U.  S.  minister  at  the  Netherlands  by  Mr.  Pickering,  Sec. 
of  State,  in  letter  to  the  President,  July  21,  1796.     MSS.  Dom.  Let. 

On  the  recognition  of  foreign  sovereigns,  see  supra,  ^  70. 

"  The  conflicting  claims  set  up  by  Mr.  Barrozo  Pereira  and  Mr.  Tor- 
lade  d'Azambuja,  the  late  and  present  representatives  of  the  Govern- 
ment of  Portugal  near  the  United  States,  with  respect  to  the  archives 
of  the  Portuguese  legation,  gave  rise  to  a  legal  procedure  for  their  re 
CO  very,  instituted  by  the  latter  against  the  former  in  one  of  the  State 
courts  of  Pennsylvania.  Mr.  Barrozo,  who  declined  surrendering  them, 
was  arrested  on  legal  process,  and  put  in  confinement  upon  his  refusing 
to  give  bail  in  the  sum  of  one  hundred  thousand  dollars  for  his  appear- 
ance at  the  trial,  which  was  to  decide  the  rights  set  up  by  the  respective 
parties.  Under  these  circumstances  he  ai:>plied  to  this  Department  for 
evidence  as  to  his  public  character  and  the  exemx)tions  attached  to  it, 
and  for  its  interference  in  procuring  his  release  from  confinement.  On  the 
other  hand,  Mr.  Torlade  d'Azambuja,  having  made  a  similar  application 
for  evidence  to  support  his  own  title,  this  Department  was  drawn  into 
an  interference  which  renders  it  expedient  that  you  should  be  placed  in 
possession  of  such  facts  in  relation  to  it  as  will  enable  you  to  impart  to 
the  Brazilian  Government,  in  case  it  should  be  asked,  correct  and  cir- 
cumstantial information  respecting  the  part  which  was  taken  in  the 
affair  by  this  Department,  and  the  views  entertained  respecting  it  by 
the  President  and  Government  of  the  United  States. 

"  The  only  active  agency  of  this  Department  in  the  controversy  was 
a  letter  addressed  to  Mr.  Barrozo,  at  the  instance  of  Mr.  Torlade,  re- 
questing him  to  deliver  to  the  last-mentioned  gentleman  the  archives  of 
the  Portuguese  legation.  This  request  not  being  complied  with  by  Mr. 
Barrozo,  who  stated  his  reasons  for  not  doing  it,  the  matter  in  dispute 
was  left  to  take  its  course  before  the  court  where  the  suit  had  been  insti- 

018 


CHAP.  IV.]  CHANGE  OF  GOVERNMENT.  §  87. 

tated,  and  which,  aided  by  the  evidence  furnished  fiom,  this  Depart- 
ment with  respect  to  the  public  character  of  the  parties,  quaHhed  the 
writ,  and  released  Mr.  Barrozo  from  the  process  issued  against  him. 

*  *  *  "The  court  having-  determined  to  consider  Mr.  Barrozo  as 
still  enjoying  the  privileges  and  immunities  attached  to  the  represent- 
ative character  of  a  public  minister,  the  attorney  of  the  United  States 
for  the  eastern  district  of  Pennsylvania  thought  it  his  duty  to  institute 
a  suit  against  the  ])ersons  concerned  in' the  arrest  of  Mr.  Barrozo  for  an 
infraction  of  the  act  of  Congress  exempting  public  ministers  from  judicial 
process,  which  suit  now  awaits  a  decision  in  the  due  course  of  law." 

Mr,  Van  Buren,  Sec.  of  State,  to  Mr.  Brown,  Oct.  20,  18:W.    MSS.  lust.,  Am.  St. 

According  to  ordinary  European  practice,  on  the  accession  of  a  new 
sovereign,  new  letters  to  him  are  forwarded  to  ministers  resident  at  his 
seat  of  Government. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Schenck,  Apr.  27,  1H75.  MSS.  Inst.,  Or.  Brit. 

This  question  came  before  the  district  court  of  Philadeli)hia,  which 
held  that  a  charg6  d'affaires  who  has  returned  his  exequatur  and  ob- 
tained his  passports  cannot  be  sued  in  trover  for  the  archives  of  the 
mission  by  a  new  minister  who  represents  an  incoming  adverse  dynasty, 
though  such  new  minister  is  recognized  by  the  Secretary  of  State,  the 
reason  being  that  the  outgoing  minister  is  entitled  as  a  returning  min- 
ister to  his  privilege  from  suit. 

D'Azambuja  v.  Pereira,  1  Miles  (Phi!.),  3G6. 

It  was  further  held  that  the  recognition  of  a  foreign  minister  is  con- 
clusive evidence  of  the  authenticity  and  validity  of  his  credentials,  and 
that  where  a  diplomatic  representative  announces  the  cessation  of  his 
functions  by  reason  of  a  change  of  authority  in  his  country  and  obtains 
his^  passports,  he  has  not  waived  his  privilege  as  a  returning  minister, 
and  the  process  should  be  quashed.  Ithas  been  also  held  that  such  a  suit, 
as  in  this  case,  is  no  evidence  that  the  sovereign  has  deprived  the  charge 
of  his  privilege,  even  if  it  wer  e  competent  so  to  do. 

Torlade  v.  Barrozo,  1  Miles  (Phil.),  361. 

Subsequently  the  attorney  who  issued  the  capias  was  indicted  under 
the  act  of  Congress  and  tried  in  the  Federal  court.  The  case  went  to 
the  Supreme  Court  of  the  United  States  on  a  difference  of  opinion,  and 
a  nolle  prosequi  was  entered  by  direction  of  the  President. 

U.  S.  V.  Phillips,  6  Pet.,  776, 

For  other  points  in  this  controversy,  see  8  J.  Q.  Adams'  Mem.,  221,  ff. 

A  change  in  the  Government  by  which  a  foreign  minister  is  accred- 
ited suspends  the  activity  of  his  functions,  but  does  not  necessarily 
terminate  them,  and  during  such  Ruspension  he  is  entitled  to  the  immu- 
nities of  a  public  minister.  Mr.  Barrozo  Pereira,  the  Portuguese  charg6 
d'affaires,  on  the  30th  October,  1829,  was  consequently  held  entitled  to 

619 


§  88  ]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

the  respect  and  iininuuities  of  a  public  uiiuister,  notwitbstandiug  the 
assumption  of  regal  power  in  Portugal  by  Don  Miguel  in  exclusion  of 
Don  Pedro  IV. 

2  Op..  -290,  Berrieu,  1829. 

As  between  the  American  Republics  in  which  the  executive  power  is 
permanent  and  continuous,  the  functions  of  a  public  minister  do  not 
cease  on  a  mere  change  of  President.  A  fortiori  the  Mexican  commis- 
sioner, Mr.  Salazar,  aj)poiuted  by  President  Santa  Anna  to  act  on  be- 
half of  Mexico  in  defining  the  cession  of  territory  to  the  United  States, 
under  the  Mesilla  treaty  of  December  30,  1853,  is  not  deprived  of  his 
authority  by  the  resignation  of  President  Santa  Anna  and  the  install- 
ment of  a  successor. 

7  Op.,  582,  Gushing,  1855. 

XII.  DIPLOMATIC  GRADES. 

§88. 

By  the  congresses  of  Vienna  and  Aix-la-Chapelle  four  distinct  kinds 
of  embassies  were  recognized  : 

(1)  ''Ambassadeurs,"  legates,  and  nuncios  of  the  Pope.  These  are 
regarded  as  the  personal  representatives  of  the  sovereign  by  whom 
the.^  are  sent. 

(2)  Ministers  plenipotentiary  and  envoys. 

(3)  Ministers  resident. 

(4)  Charges  d'affaires,  who  are  appointed  by  the  minister  of  foreign 
aftairs,  while  the  three  classes  first  above  named  are  commissioned  nom- 
inally or  actually  by  the  sovereign. 

Wliart.  Com.  Am.  Law,  ^  lfi9. 

As  to  rules  of  precedence  of  congress  of  Vienua,  see  Blackwood'-s  Mag.  for  Dec, 
1873,  vol.  114,  p.  681. 

That  diplomatic  agents  are  not  to  appear  officially  but  with  their  full 
titles,  and  to  negotiate  only  with  ministers  of  equal  rank,  see  7  John 
Adams'  Works,  451,  452  :  8  id.,  4. 

"  In  the  practice  of  our  Government  there  is  no  immediate  connection 
or  dependence  between  persons  holding  diplomatic  and  consular  aj)- 
pointments  in  the  same  country;  but,  by  the  usage  of  all  the  commer- 
cial nations  of  Europe,  such  a  subordination  is  considered  as  of  course. 
In  the  transaction  of  their  official  duties  the  consuls  are  often  in  neces- 
sary correspondence  with  their  ministers,  through  whom  alone  they  can 
regularly  address  the  supreme  Government  of  the  country  wherein  they 
reside,  and  they  are  always  supposed  to  be  under  their  directions.'  ,You 
will  accordingly  maintain  such  correspondence  with  the  consuls  of  the 
United  States  in  France  as  yo':  shall  think  conducive  to  the  public 
interest ;  and  in  case  of  any  vacancy  in  their  offices,  which  may  require 
a  temporary  appointment  of  a  person  to  i^erform  the  duties  of  the  con- 
sulate, you  are  authorized,  with  tiie  consent  of  the  Government  to 
G20 


CHAP.  IV.]  DIPLOxMATIC    GRADES.  [§  88. 

which  you  are  accredited,  to  make  it,  giving  imincdiatc,  noti(M'  of  it  to 
this  Department." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Brown,  Dec.  24,  1h'>:5.     MsS.  iii.st.,  MiniMters. 

A  report  by  Mr.  Clay,  Secretary  of  State,  January  31 ,  1827,  on  the  posi- 
tion of  charges  d'affaires  is  contained  in  House  Doc.  No.  452, 19th  Cong., 
2d  sess.  In  this  report,  after  enumerating  a  scries  of  cases  of  persons 
appointed  as  charges  d'afiaires,  with  their  respective  terms  of  otlice,  Mr. 
Clay  i)roceeds  as  follows : 

"  Most  of  the  preceding  appointments  of  charges  d'aftaircs  wtMc  ma<le 
whilst  we  had  ministers  appointed  to  reside  near  the  same  Government. 
Mr.  Purviance  was  so  appointed  by  Mr.  Monroe,  being  the  regular  min- 
ister of  the  United  States  in  London  at  the  time.  ]\[r.  Erviug,  being 
the  secretary  of  legation  at  Madrid,  was  intrusted  with  the  charge  of 
our  affairs  until  the  arrival  of  Mr.  Bowdoin,  our  minister.  Mr.  Ilarris, 
at  St.  Petersburg,  was  left  in  charge  of  our  affairs  whilst  Mr.  Adams 
was  absent  on  the  duty  of  assisting  in  the  negotiation  of  peace  with 
Great  Britain.  Mr.  Lawrence  was  left  charg6  d'affaires  by  IVIr.  Russell 
whilst  this  gentleman  was  absent  from  Stockholm  on  the  same  service 
of  treating  of  peace.  Mr.  Jackson  was  left  charge  at  Paris  after  Mr. 
Gallatin's  appointment,  but  before  his  arrival  in  France,  as  the  minister 
of  the  United  States.  Mr.  Brent  was  intrusted  with  the  charge  of  our 
affairs  during  Mr.  Forsyth's  return  to  the  United  States.  In  the  same 
character,  at  Stockholm,  Mr.  Hughes  was  left  by  Mr.  Ilussell  on  his 
return  home.  Mr.  Pinkney  was  left  by  Mr.  (Jamjjbell  in  charge  of  our 
affairs  in  July,  1820,  Mr.  Middleton  having  been  appointed  minister 
the  preceding  April.  Mr.  Ai)pleton  was  left  in  charge  of  our  affairs  by 
Mr.  Forsytli,  at  Madrid,  in  March,  1823,  Mr.  Nelson  having  been  ap- 
pointed minister  the  preceding  January.  Mr.  Watts  was  left  at  Bogota, 
in  charge  of  our  affairs,  in  the  year  1825,  during  Mr.  Anderson's  absence 
on  a  visit  to  the  United  States.  And,  lastly,  ^Ir.  John  A.  King  was 
left  by  Mr.  Rufus  King  in  charge  of  our  affairs  after  the  appointment 
but  before  the  arrival  of  Mr.  Gallatin  at  London.  The  necessity  of 
confiding  temporarily  to  a  charg^  the  affairs  of  a  Government,  which  is 
ordinarily  represented  by  a  minister  plenipotentiary,  arises  out  of  the 
absence  of  a  minister,  no  matter  from  what  cause.  It  is  sui)i)0sed  not 
to  be  affected  by  the  fact  of  a  minister's  having  notified  his  intention  to 
return  and  the  appointment  of  his  successor. 

"  The  authority  under  which  the  above  appointments  were  made  is 
believed  to  be  furnished  by  the  Constitution  of  the  United  States,  an<l 
the  public  law  and  usage  of  nations.  So  important  is  it  regarded  to 
preserve,  without  interruption,  the  diplomatic  intercourse  between 
nations  which  are  mutually  represented  by  ministers,  that  ui)on  the 
death  of  a  minister  the  secretary  of  legation  becomes,  by  established 
usage,  ipsofaeto,  charg6  d'affaires  until  his  Government  is  advised  and 

021 


§  88.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

provides  for  the  event.  The  period  during  which  they  respectively  con- 
tinued to  act  in  the  character  of  charge  d'affaires  will  be  seen  by  an 
inspection  of  the  annexed  abstract  from  the  books  of  the  Treasury, 
marked  A,  to  which  a  reference  is  respectfully  requested. 

"The  duties  to  be  performed  by  a  charge  d'affaires,  so  appointed,  are 
to  be  found  in  the  same  public  law  and  usage,  and  may  be  stated,  in  the 
general,  to  be  the  same  as  those  of  the  minister  whose  place  he  supplies. 
He  transacts  the  ordinary  business  of  the  legation ;  keeps  its  archives 
and  an  ofiBce ;  corresponds  with  the  Government  where  he  is  accredited, 
and  with  his  own;  and  sustains  an  expense  and  maintains  an  inter- 
course, with  the  diplomatic  corj)s  corresponding  to  the  new  station  to 
which  he  is  elevated. 

"  The  compensation  received  by  the  several  persons  so  apj)ointed 
(with  the  exception  of  Mr.  John  A.  Smith  and  Mr.  Watts,  whose  accounts 
are  not  yet  closed,  but  will  be  finally  liquidated  on  the  same  principles), 
may  be  seen  in  the  above  extract  from  the  Treasury.  From  that  abstract 
it  appears :  First,  that  the  allowance  of  safarj^  in  the  character  of  charge, 
in  the  cases  there  stated,  has  been  uniform ;  second,  that  the  allowance  of 
an  outfit  has  been  most  usually,  but  not  always,  made  5  third,  that  in  some 
instances  the  temporary  appointment  has  been  continued  after  the  inter- 
vention of  a  session  of  the  Senate,  as  in  the  cases  of  Mr.  Purviance,  Mr. 
Eussell,  Mr.  Lawrence,  Mr.  Jackson,  Mr.  Brent,  Mr.  Hughes,  and  Mr. 
Sheldon,  and  in  two  cases  (those  of  Mr.  Erving  and  Mr.  Harris)  after  the 
intervention  of  several  sessions  of  the  Senate  5  and  fourth,  that  in  the  case 
of  Mr.  John  A.  King,  the  allowance  made  to  him  was  a  medium  between 
the  highest  and  lowest  allowances  that  had  been  previously  made.  The 
highest  was  made  in  the  cases  of  Mr,  Eussell  and  Mr.  Jackson,  to  each 
of  whom,  besides  the  outfit  and  salary  of  a  charge,  a  quarter's  return 
salary  was  allowed.  Mr.  King  was  not  allowed  salary  as  a  charge  during 
the  absence  of  Mr.  Gallatin  on  his  visit  to,  Paris  last  fall,  nor  was  he 
allowed  a  quarter's  return  salary  as  charg6.  He  was,  moreover,  the 
bearer  of  a  convention,  the  first  intelligence  of  the  conclusion  of  which 
reached  the  Department  by  his.  delivery  of  the  instrument  itself.  Such 
a  service  is  always  regartled  in  the  transactions  of  Governments  as  one 
of  peculiar  interest.  He  might  have  been,  but  was  not,  allowed  the 
usual  compensation  made  to  bearers  of  dispatches." 

6  Am.  St.  Pap.  (.For.  Eel.),  555. 

"  The  object  of  diplomatic  missions  is  to  adjust  differences  and  conduct 
affairs  between  Governments  in  regard  to  their  political  and  commercial 
relations,  and  to  furnish  the  Government  at  home  with  information 
touching  the  country  to  which  the  mission  is  accredited  more  full  and 
accurate  than  might  be  obtained  through  the  ordinary  channels,  or  more 
j)romptly  than  the  same  information  might  otherwise  be  received.  The 
grade  of  a  mission  may  be  higher  or  lower,  according  to  the  estimate 
of  its  importance. 
622 


CHAP.  IV.]  DIPLOMATIC    GRADES.  [§  88. 

"As  a  general  rule,  no  rrovernmeMt  semis  to,  or  at  least  continues 
in,  another  country  a  minister  of  a  higher  grade  tlian  that  country  may 
reciprocate.  This  rule,  however,  is  by  no  lueaus  invariable,  and  for 
various  reasons  it  seems  to  be  proper  to  leave  it  to  the  President  to 
«letermine  the  cases  in  which  excei)tions  oii,i>ht  to  be  made.  There  are 
not  sufficient  advantages  in  having  ministers  of  the  highest  grade 
accredited  to  all  Governments — the  most  inconsiderable  as  well  as  the 
most  important — to  justify  a  departuie  from  a  long  prevalent  and  com- 
mon usage,  with  many  good  reasons  to  sustain  it." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Penuiugton,  chairman  of  the  Committee  on 
Foreign  Aifairs,  House  of  Representatives,  May  23,  185G.  MSS.  Report 
Book. 

"  Your  dispatch  No.  61,  of  the  16th  ultimo,  relative  to  the  question 
of  precedence  which  has  arisen  among  the  representatives  of  foreign 
powers  of  Tangier,  has  been  received.  In  reply  I  have  to  state  that 
every  nation  may  consult  its  own  jjleasure  in  regard  to  the  grade  of  its 
dii>lomatic  or  other  representative  in  a  foreign  country.  That  grade 
must  be  i^resumed  to  be  measured  by  its  sense  of  the  importance  of  its 
relations  with  the  power  to  tn  hich  the  representatives  may  be  accredited. 

"  Consuls  have  diplomatic  functions  in  the  Barbary  states.  The 
United  States  consul  is  accredited  to  the  Emperor  of  Morocco.  His 
predecessors  were  accredited  in  the  same  way,  and  the  consuls  at  Tri- 
poli, Tunis,  and  in  Egypt  are,  respectively,  accredited  to  the  heads  of 
the  Governments  of  those  countries. 

"  It  is  customary,  where  the  rules  of  the  treaty  of  Vienna  and  the 
l)rotocol  of  Aix-la-Chapelle  are  acknowledged,  for  the  eldest  of  the  chief 
grade  to  take  precedence  of  all  others,  and  the  eldest  also  when  they 
are  all  of  the  same  grade.  Is  this  rule  binding  and  oj)erative  at  Tan- 
gier ? 

"  The  French  have  thought  proper  to  accredit  a  minister  plenii)oten- 
tiary  to  the  Emj^eror  of  Morocco,  who  resides  at  Tangier,  and  who 
claims  precedence  over  the  representatives  of  other  Governments  there 
solely  in  virtue  of  the  superiority  of  his  official  grade.  Is  this  claim 
indefeasible  ?  The  rules  in  regard  to  precedence  above  referred  to,  hav- 
ing been  embodied  in  a  treaty  and  in  a  protocol,  may  be  technically 
binding  only  on  the  parties  to  those  instruments.  The  United  Spates 
were  not.  a  party  to  them.  The  Emperor  of  Morocco  might  «lisregard 
them  for  a  similar  reason.  Those  rules,  however,  may  be  said  to  have 
been  merely  a  formal  recognition  by  the  chief  p6wers  of  Europe  of  a 
custom  which  had  been  the  law  of  nations  upon  the  sul>ject  ever  since 
diplomacy  began  in  modern  times.  As  such  they  have  hitherto  been 
practically  accepted  even  by  this  Government,  whenever  it  may  have 
had  occasion  to  send  representatives  of  any  of  the  grades  to  which 
they  refer.  We  have  never  had  any  officer  at  Tangier  of  a  "higher  grade 
than  consul.    If,  however,  we  should  accredit  a  minister  plenipotentiary 

623 


§  88.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

to  the  Emperor  of  Morocco,  we  certainly  should  expect  him  to  have  prec- 
edence on  public  occasions,  and  in  official  proceedings,  over  the  repre- 
sentatives of  lower  grade  from  other  powers.  Should  not  the  same 
privilege  be  conceded  to  other  states  ? 

"  The  advantage,  if  it  be  one,  is  accidental  now  in  the  case  of  France. 
It  may  be  claimed  by  ourselves,  or  by  Mexico,  or  by  Switzerland,  to- 
morrow. 

"  If,  as  cannot  be  denied,  the  grade  of  a  diplomatic  agent  implies  the 
opinion  entertained  by  his  Government  of  the  importance  of  his  rela- 
tions with  the  Government  to  which  he  may  be  accredited,  this  may,  it 
seems,  be  properly  allowed.  It  may,  however,  be  taken  for  granted 
that,  whatever  may  be  the  grade  of  such  an  agent,  his  social  or  public 
efficiency  is  by  no  means  always  in  proportion  to  his  grade,  but  will  be 
influenced  by  the  comparative  importance  of  the  country  he  may  repre- 
sent, and  will  also  comport  with  the  strength  of  his  character  and  of  his 
abilities. 

"  It  is  not  supposed  that  the  tardiness  of  the  minister  of  France  in 
asserting  the  privileges  of  his  grade  precludes  him  from  assuming  them 
whenever  he  may  deem  it  advisable. 

"  Under  these  circumstances,  the  impression  is  entertained  that  it  will 
not  be  contrary  to  your  official  dignity,  or  that  of  the  Government  which 
you  represent,  to  acquiesce  in  the  application  at  Tangier  of  the  conven- 
tional rule  which  prevails  here  and  everywhere  else." 

Mr.   Seward,  Sec.   of   State,  to  Mr.   McMatli,  Dec.  30,  1868.     MSS.  Inst.,  Mo- 
rocco; Dip.  Corr.,  1868. 

"A  charge  d'affaires  can  only  be  legally  and  properly  recognized  when 
officially  accredited  to  the  Department  by  the  minister  of  foreign  affairs 
of  the  country  which  he  claims  to  represent." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Squier,  Nov.  4,  1869.     MSS.  Notes,  Honduras. 

"  Whilst  in  the  official  and  private  intercourse  between  a  minister  and 
his  secretaries  it  is  undoubtedly  among  the  first  of  his  duties  to  observe 
a  frank,  courteous,  and  kindly  demeanor  towards  them,  on  the  other 
hand,  it  is  no  less  incumbent  on  the  secretaries  to  fulfill  with  alacrity 
and  dispatch,  in  the  best  manner  they  are  able,  the  general  and  occa- 
sional instructions  of  the  minister  touching  the  afi'airs  of  the  legation, 
and  to  maintain  in  their  intercourse  with  him  an  unvarying  due  observ- 
ance of  all  the  deference  which  characterizes  the  gentleman,  and  which 
is  prescribed  by  the  rules  of  good  breeding.  No  servility,  however, 
ou  their  part,  or  any  compromise  of  that  self-respect  which  they  owe  to 
themselves,  is  expected." 

Mr.  Fish.  Sec.  of  State,  to  Mr.  Vignaiul,  Jan.  18,  1876.     MSS.  Inst.,  France. 

A  "  political  agent,"  sent  as  such  by  a  foreign  Government  to  the 
United  States,  is  not  to  be  regarded  as  a  diplomatic  character,  entitled 
624 


CHAP.  IV.]  DIPLOMATIC    GRADES.  [§  88. 

to  the  immunities  of  such,  eveu  though  he  is  at  the  same  time  consul- 
general. 

Mr.  Blaiuo,  Sec.  of  State,  to  Mr.  Totten,  Apr.  12,  1881.     MSS.  Dom.  Let. 

"As  long  as  the  minister  is  present  the  secretary  of  legation  is  not 
recognized  by  any  foreign  Government  whatever  as  being  authorized 
to  perform  a  single  official  act  other  than  as  directed  by  the  minister 
himself." 

Mr.  Freliughuysen,   Sec.   of  State,   to  Mr.  Wurts,   Feb.  28,  1883.     MSS.  Inst., 
Russia. 

The  Department  cannot,  under  present  circumstances,  "  in  justice 
to  its  ministers  abroad,  ask  Congress  to  give  them  higher  rank  with 
their  present  salaries;  neither  could  it  with  propriety  appeal  to  Con- 
gress for  an  allowance  commensurate  with  the  necessary  mode  of  life 
of  an  ambassador." 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.  Hunt,  Jan.  31, 1884.     MSS.  Inst.,  Russia. 

"  The  question  of  sending  and  receiving  ambassadors,  under  the  ex- 
isting authorization  of  the  Constitution  and  the  Statutes,  bus  on  several 
occasions  had  more  or  less  formal  consideration,  but  I  cannot  find  that 
at  any  time  the  benefits  attending  a  higher  grade  of  ceremonial  treat- 
ment have  been  deemed  to  outweigh  the  inconveniences  which,  in  our 
simple  social  democracy,  might  attend  the  reception  in  this  country  of 
an  extraordinarily  foreign  privileged  class. 

"  It  seems  hardly  necessary  to  point  out  in  detail  considerations  which 
will  doubtless  readily  suggest  themselves  to  your  discernment. 

"  1  infer  from  your  statement  that  the  position  of  the  United  States 
minister  in  the  order  of  precedence,  especially  after  a  change  in  the 
mission,  when  the  newcomer  necessarily  falls  to  the  foot  of  the  list,  may 
entail  delay  in  obtaining  access  to  the  secretary  of  foreign  attairs  in  the 
ordinary  transaction  of  business.  This  is  regulated  in  Washington  and 
in  several  other  capitals  by  the  adoption  of  the  rule  dettir  priori,  with 
entire  acceptability. 

"In  1871,  when  Mr.  George  Bancroft  was  minister  ot  tlir  riiited 
States  at  Berlin,  the  question  of  his  yieldijig  the  pas  at  the  foreign  of- 
fice in  everyday  intercourse  to  representatives  of  higher  grade  or  longer 
residence  came  up  for  consideration.  I  inclose  transcript  of  a  dispatch 
from  Mr.  Bancroft,  reporting  the  rule  then  adopted  by  rrincc  von  Bis- 
marck." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Phelps,  July  2,  1885.     MSS.  Inst.,  Gr.  Brit. 

The  rule  adopted  by  Prince  von  Bismarck,  as  reported  in  Mr.  Ban- 
croft's dispatch  of  January  20,  1872,  is  as  follows: 

"  The  chief  of  a  mission  who  arrives  first  [at  the  Foreign  Office]  is 
first  admitted,  be  his  rank  that  of  ambassador,  minister  or  charge." 

"For  the  sake  of  convenience  and  uniformity  in  determining  the  rel- 
ative rank  and  precedence  of  diplomatic  rejireseutatives,  the  Depart- 

S.  Mis.  162— Vol.  i 40  ^25 


§  88.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

ment  of  State  has  adopted  and  prescribed  the  seven  rules  of  the  con- 
gress of  Vienna,  found  in  the  protocol  of  the  session  of  March  9,  1815, 
and  the  supplementarv  or  eighth  rule  of  the  congress  of  Aix-la-Cha- 
pelle  of  November  21,  1818.     They  are  as  follows  : 

"  '  In  order  to  })reveut  the  inconveniences  which  have  frequently  oc- 
curred, and  which  might  again  arise,  from  claims  of  precedence  among 
different  diijlomatic  agents,  the  plenipotentiaries  of  the  powers  who 
signed  the  treaty  of  Paris  have  agreed  on  the  following  articles,  and 
they  think  it  their  duty  to  invite  the  plenipotentiaries  of  other  crowned 
heads  to  adopt  the  same  regulations  : 

"'Article  I.  Diplomatic  agents  are  divided  into  three  classes :  That 
of  embassadors,  legates,  or  nuncios  ;  that  of  envoys,  ministers,  or  other 
persons  accredited  to  sovereigns  ;  that  of  charges  d'affaires  accredited 
to  ministers  for  foreign  affairs. 

"  'Art.  II.  Embassadors,  legates,  or  nuncios  only  have  the  represent- 
ative character. 

"'Art.  III.  Diplomatic  agents  on  an  extraordinary  mission  have  not, 
on  that  account,  any  superiority  of  rank. 

"  'Art.  IV.  Diplomatic  agents  shall  take  precedence  in  their  respect- 
ive classes  according  to  the  date  of  the  official  notification  of  their 
arrival.  The  present  regulation  shall  not  cause  any  innovation  with 
regard  to  the  representative  of  the  Pope. 

"  'Art.  V.  A  uniform  mode  shall  be  determined  in  each  state  for  the 
reception  of  diplomatic  agents  of  each  class. 

''  'Art.  VI,  Relations  of  consanguinity  or  of  family  alliance  between 
courts  confer  no  precedence  on  their  diplomatic  agents.  The  same  rule 
also  applies  to  political  alliances. 

"  'Art.  VII.  In  acts  (  r  treaties  between  several  powers  which  grant 
alternate  precedence,  the  order  which  is  to  be  observed  in  the  signa- 
tures shall  be  decided  by  lot  between  the  ministers. 

"  'Art.  VIII.  It  is  agreed  that  ministers  resident  accredited  to  them 
shall  form,  with  respect  to  their  precedence,  an  intermediate  class  be- 
tween ministers  of  the  second  class  and  charges  d'affaires.' 

"  The  representatives  of  the  United  States  are  of  the  second,  the 
intermediate,  and  the  third  classes,  as  foUows : 

"A.  Envoys  extraordinary  and  ministers  plenipotentiary.  Special 
commissionecs,  when  styled  as  having  the  rank  of  envoy  extraordinary 
and  minister  plenipotentiary. 

"  B.  Ministers  resident. 

"These  grades  of  representatives  are  accredited  by  the  President. 

"  C.  Charges  d'affaires,  commissioned  by  the  President  as  such,  and 
accredited  by  the  Secretary  of  State  to  the  minister  for  foreign  affairs 
of  the  Government  to  whicdi  they  are  sent. 

"D.  Charges  d'affaires  ad  interim.  These  are  in  most  cases  secreta- 
ries of  legation,  who,  ex  officio,  act  as  temporary  chiefs  of  mission  in  the 
absence  of  the  minister,  and  need  no  special  letter  of  credence.  In  the 
absence  of  a  secretary  of  legation,  the  Secretary  of  State  may  designate 
any  competent  person  to  act  ad  interim,  in  which  case  he  is  specifically 
accredited  by  letter  to  the  minister  for  foreign  affairs. 

"  When  the  office  of  consul-general  is  added  to  that  of  minister  resi- 
dent, charge  d'affaires,  or  secretary  of  legation,  the  diplomatic  rank  is 
regarded  as  superior  to  the  consular  rank.  The  officer,  however,  will 
follow  the  Consular  Eegulations  in  regard  to  his  consular  duties  and 
official  accounts,  keeping  correspondence  in  one  capacity  separate  from 

626 


CHAP.  IV.]  DIPLOMATIC    GRADES.  [§  88. 

coirespoudence  in  the  other.     The  allowance  for  rent  in  such  coiul)iiictl 
offices  is,  as  a  rule,  based  upon  the  entire  salary." 

Printed  Pers.  Inst.,  Dip.  Agents,  1885. 

The  expression  "  ambassadors  and  other  i)ul)lic  ministers,"  in  the 
Constitution,  must  be  understood  as  comprehending  all  offi(;ers  having 
diplomatic  functions,  whatever  their  title  or  designation. 

7  Op.,  186,  Cusliing,  1855. 

The  commissioner  of  the  United  States  in  China  is  a  diplomatic  offi- 
cer by  the  law  of  nations,  and  a  judicial  officer  by  treaty  and  statute. 
Ibid. 

"  With  reference  to  diplomatic  rank,  I  only  heard  last  night  for  the 
first  time  that  the  Duke  of  Sutherland  had,  some  time  ago,  addressed 
a  formal  remonstrance  to  Palmerston  against  foreign  ministers  (not 
ambassadors)  having  place  given  them  at  the  palace  (which  means  going 
out  to  dinner  over  himself  et  suos  pares),  a  most  extraordinary  thing  for 
a  sensible  man  to  have  done,  especially  in  such  high  favor  as  his  wife 
and  her  whole  family  are.  He  got  for  answer  that  Her  Majesty  exer- 
cised her  own  pleasure  in  this  respect  in  her  own  palace.  The  rule 
always  has  been  that  ambassadors  (who  rejjresent  the  persons  of  their 
sovereigns)  have  precedence  of  everybody ;  ministers,  who  are  only 
agents,  have  not ;  but  the  Queen,  it  appears,  has  given  the  pas  to  min- 
isters plenipotentiaries,  as  well  as  to  ambassadors,  and  ordered  them 
to  go  out  at  her  dinners  before  her  own  subjects  of  the  highest  rank." 

In  a  note  it  is  said  to  have  been  '<  afterward  settled  by  Her  Majesty 
that  foreign  ministers  should  take  precedence  a/fer  dukes  a  nd  before 
marquesses." 

Greville's  Mem.,  2d  series,  Mar.  29,  1860.     As  to  precedence  sociallj-,  see  infra, 
§  107a. 

"At  very  many  foreign  offices  the  rule  '  first  come  first  served  '  is  not 
observed ;  but  an  envoy  or  a  minister,  though  he  may  have  been  wait- 
ing hours  in  the  ante-room  for  an  important  affair,  must  give  place  to 
an  ambassador  who  has  come  in  at  the  moment ;  and  at  Constantinople 
it  is  even  expected  that,  should  a  minister  be  in  conversation  with  the 
minister  of  foreign  aftairs  or  the  grand  vizier,  he  should  withdraw  and 
wait  whenever  an  ambassador  may  be  announced.  In  some  countries 
a  different  rule  is  observed.  In  Russia  it  has  been  for  many  years  the 
custom  for  the  minister  to  receive  tlie  foreign  representatives  in  the  order 
in  which  they  arrive  at  his  office,  without  regard  to  their  rank.  This  rule 
was  brought  into  force  at  Berlin,  owing  to  a  personal  dispute  between 
Mr.  Bancroft,  onr  minister,  and  the  British  ambassador.  iMr.  Bancroft, 
after  having  waited  a  long  time  for  an  audience,  was  on  one  occasion 
obliged  to  yield  to  the  British  ambassador,  who  had  that  moment 
arrived.  As  the  ambassador  was  personally  disagreeable  to  the  ehan- 
cellor,  and  Mr.  Bancroft  was  a  friend  of  his,  a  representation  of  the 
injustice  done  to  the  United  States  and  its  representative  brought 
about  a  change  of  rule." 

Schuyler'.s  Am.  Diplom.,  11:5.  ^ 

Mr.  Schuyler  (American  Diplomacy,  114  .//',)  argues  with  iiuieh  ear- 
nestness for  the  appointment,  if  not  of  ambassadors,  at  least  of  diplomatic 
agents  of  uniformly  high  grade. 

627 


§§  88a,  89.1  DIPLOMATIC    agents.  [chap.  IV. 

XIII.  CITIZENS  OF  COUNTRY  OF  RECEPTION  NOT  ACCEPTABLE. 

§  88a. 

It  is  considered  by  the  Government  not  advisable  to  receive  a  citizen 
of  the  United  States  as  the  permanent  diplomatic  representative  of  a 
foreign  power.  It  would  be  otherwise  as  to  special  purposes  not  in- 
volving continuous  abode  in  the  country. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Squier,  Mar.  5,  1870.     MSS.  Notes,  Honduras. 

"  This  Government  objects  to  receiving  a  citizen  of  the  United  States 
as  a  diplomatic  representative  of  a  foreign  power.  Such  citizens,  how- 
ever, are  frequently  recognized  as  consular  officers  of  other  nations,  and 
this  policy  is  not  known  to  have  hitherto  occasioned  any  inconven- 
ience." 

Mr.  Evarfs,  Sec.  of  State,  to  Mr.  Logan,  Sept.  19,  1879.     MSS.  Inst.,  Cent.  Am. 

"Although  tbe  usage  of  diplomatic  intercourse  between  nations  is 
averse  to  the  acceptance,  in  the  representative  capacity,  of  a  ])er.s()n 
who,  while  native-born  in  the  country  which  sends  him,  has  yet  acquired 
lawful  status  as  a  citizen  by  naturalization  of  the  country  to  which  lie 
is  sent,  as  is  understood  to  be  the  case  with  your  worthy  self,  I  am  not 
dis[»osed  to  interpose  any  technical  obstacle,  however  sound,  to  the 
immediate  renewal  of  diplomatic  relations  with  Venezuela,  and  it  will 
give  me  much  pleasure  to  receive  from  your  hands  the  original  letters 
of  credence  you  bear,  at  such  time  to-morrow,  the  21st  instant,  between 
12  and  3  o'clock,  as  may  be  most  convenient  to  you." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Camacho,  Apr.  20,  1880.     MSS.  Notes,  Venez. 

XIV.     DIPLOMATIC     CORRESPONDENCE     CONFIDENTIAL,     EXCEPT     BY 
ORDER    OF  DEPARTMENT. 

§89. 

"  No  ground  of  support  for  the  Executive  will  ever  be  so  sure  as  a 
complete  knowledge  of  their  proceedings  by  the  people,  and  it  is  only 
in  cases  where  the  public  good  would  be  injured,  and  because  it  would 
be  injured,  that  proceedings  should  be  secret.  In  such  cases  it  is  the 
duty  of  the  Executive  to  sacrifice  their  personal  interests  (which  would 
be  promoted  by  publicity)  to  the  public  interests." 

Mr.  Jefferson.  Sec.  of  State,  to  the  President,  Dec.  2,  1793.    4  Jeff.  Works,  89. 

The  publication  in  the  newspapers  by  a  foreign  minister  in  the  United 
States  of  an  official  letter  to  the  Secretary  of  State  is  an  improper  act, 
which  will  justify  alike  publication  by  the  Secretary  of  his  reply. 

Mr.  Pickering,  Sec.  of  State,  to  Mr.  Pinckney,  Nov.  5,  1796.     MSS.  Inst,  Min- 
isters. 
628 


CHAP.  IV.]  ISATUKE    OF    CORRESPONDENCE.  [§  89. 

For  instaucesofthepublicat  ion  ofcoiiliovcr.sialdiploiiiiiticuotes  before 
thoy  had  beeu  received  by  tlie  ])ar(ies  to  wliom  tliev  \vei<'  ad<lressed,  see 
11  J.  Q.  Adairis'  Mem.,  ;i(i(). 

As  to  touG  of  correspondence,  sec!  infra,  v^  107. 

The  piiblicatiou,  by  a  foreign  iiiiuisster  to  the  United  States,  ''of  bis 
correspondence  with  the  Department  withont  the  authority  of  his  Gov- 
ernment, is  believed  to  be  unexamj)]ed  in  the  history  of  diplomacy  and 
not  decorous  to  the  United  States.'' 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Ellis,  Dae.  !M8:}(;.     MSS.  Inst.,  Ministers. 
As  to  Mr.  Webster's  criticism  ou  the  action  of  Mr.  Cass,  in  reference  to  jMihiiea- 
tiou  of  otYicial  action,  see  (i  Webster's  Works,  383. 

By  the  rules  of  the  Department  papers  connected  with  i)endinu  (li])l<) 
matic  negotiations  cannot  be  made  public  unless  the  (locuments  are 
called  for  by  Congress  with  the  usual  limitations. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  McKeon,  Feb.  8,  1854.     MSS.  Doni.  Let. 

"  The  cipher  now  used  by  this  Department  has  been  used  for  the 
last  forty  years  at  least,  and  is  framed  upon  a  system  which  is  consid- 
ered to  render  it  entirely  inscrutable  to  any  one  not  having  the  key. 
No  doubt  offers  of  other  systems  have  often  been  made  to  the  Dei)art- 
ment  since  the  one  now  in  use  was  adoi)ted.  Indeed,  the  chief  clerk, 
who  has  been  an  officer  of  the  Department  for  about  twenty-five  years, 
informs  me  that  such  offers  have  averaged  at  least  four  a  year  within- 
that  time." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Breckenridge,  Dec.  22,  1853.     MSS.  Dom.  Let. 

"  Your  idea  of  imx)roving  our  foreign  diplomacy  by  having  each  min- 
ister a])prised  of  the  principal  objects  pursuing  at  every  <*onrt  is  excel- 
lent. 1  urged  something  analogous  to  it  upon  Mr.  Forsyth,  while  I  was 
at  St.  Petersburg,  and  I  pressed  it  uj)on  Mr.  Webster  when  Secretary  of 
State.  It  is  the  great  practical  advantage  enjoyed  by  the  diplomats  of 
Russia.  It])roducesa  harmony  of  action  and  inculeai'wu  that,  in  a  long 
run,  tells  con(;lusively.  Mr.  Webster's  difficulty  was  in  the  great  labor 
which  it  must  throw  upon  somebody  in  the  Department  already  over- 
taxed. How  that  may  be,  1  can't  pretend  to  say,  but  if  there  be  any  use 
at  all  in  having  missions  dotted  over  Europe,  they  might  as  well  be 
made  to  co-operate  in  the  general  policy  of  the  Government  as  run  the 
risk  of  impeding  it  by  a  want  of  information  from  the  fountain-head." 

Mr.  Dallas  to  Mr.  Cass,'  Sec.  of  State,  Oct.  13,  1H57.     1  Dallas,  Letters  from  Lon- 
don, 317. 

Communications  to  the  Government  of  the  United  States  by  its  for- 
eign ministers  are  so  far  privileged  that,  though  published  by  order  of 
Congress,  the  Government  cannot  sanction  criticisms  of  them  by  other 
foreign  powers. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jay,  July  11,  1870.     MSS.  Inst..  Austria. 

"The  Departtnent  gives  to  the  consideration  and  ])reparation  for 
publication  of  the  dispatches  of  its  agents  abroad  every  attention,  with 
the  object  of  guarding  against  the  publication  of  their  personal  views, 

629 


^S  89.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

which  might,  if  known,  expose  them  to  criticism  or  censure  in  the  land 
of  their  official  residence.  In  an  examination  of  the  blue  books  of  other 
Governments  it  is  believed  that  far  more  care  is  here  exercised  in  this 
respect  than  in  other  countries.  It  is,  of  course,  impossible  to  prevent 
malicious  or  honestly  mistaken  perversion  of  such  publication  by  out- 
side parties.    *     *     * 

"  If  the  propriety  of  making  such  matters  public  in  due  time  be  left 
to  the  discretion  of  the  Secretary  of  State,  it  is,  indeed,  possible  that 
Ills  views  as  to  what  parts  of  such  communications  may  or  may  not  be 
uuobnoxious  to  adverse  criticism  may  differ  from  those  of  the  writer. 
The  latter  being  brought  into  direct  contact  with  the  foreign  adverse 
elements  surrounding  him,  is  naturally  often  better  qualified  to  judge 
of  what  may  be  liable  to  be  used  by  unfair  partisanship  to  his  discredit. 
Fully  aware  of  this,  the  Department  always  gives  the  most  considerate 
attention  to  any  iutimation  its  agents  may  convey  that  their  dispatches 
are  to  be  deemed  confidential,  and  it  rarely  happens  that  public  inter- 
ests are  so  grave  as  to  override  such  intimations." 

Mr.  Davis,  Acting  Sec.  of  State,  to  Mr.   Sargent,  May  23,  1883.     MSS.  Inst., 
Germ. 

The  publication  of  diplomatic  correspondence  in  its  archives  is  a 
matter  at  the  discretion  of  each  particular  Government,  and  for  a  Gov- 
ernment to  publish  at  its  discretion  letters  to  it  from  foreign  ministers 
is  a  question  for  its  exclusive  determination. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Morgan,  Aug.  2o,  1883.     MSS.  Inst., 
Mex. 

"  The  attention  of  diplomatic  agents  is  especially  called  to  the  provis- 
ion of  law  by  which  they  are  forbidden  to  correspond^  in  regard  to  the 
public  affairs  of  any  foreign  Government  or  in  regard  to  any  matter 
which  may  be  a  subject  of  official  correspondence  or  discussion  with 
the  Government  to  which  they  are  accredited,  with  any  newspaper  or 
other  periodical,  or  with  anv  person  other  than  the  proper  officers  of 
the  United  States." 

Printed  Pers.  Inst.,  Dip.  Agents,  1885. 

"Among  the  most  important  general  duties  of  a  diplomatic  represent- 
ative of  the  United  States  is  that  of  transmitting  to  his  own  Govern- 
ment accurate  information  concerning  the  policy  and  views  of  that  to 
which  he  is  accredited,  in  its  important  relations  with  other  powers.  To 
gain  this  information  requires  steady  and  impartial  observation,  a  free 
though  cautious  correspondence  with  other  agents  of  the  United  States 
abroad,  and  friendly  social  relations  with  the  members  of  the  diplo- 
matic body  at  the  place  of  his  residence. 

"  In  their  regular  correspondence  with  the  Department,  diplomatic 
representatives  of  the  United  States  will  transmit  early  copies  of  all 
official  reports  and  such  information  relating  to  the  Government, 
finances,  commerce,  arts,  sciences,  agriculture,  manufactures,  mining, 
tariff's,  taxation,  population,  laws,  judicial  statistics,  and  to  the  condi- 
tion of  the  countries  where  they  reside,  as  may  be  useful.     In  dispatches 

630 


CHAP.  IV.]  NATURE    OF   COlUUiyPONDENCE.  [§  89. 

communicating  such  informatioD,  however,  political  affairs  should  not 
be  referred  to,  but  should  be  reserved  for  separate  comniuiiicatioiis. 
Books  of  travel,  history,  and  all  such  as  relate  to  matters  of  political 
importance,  maps  published  by  authority  of  the  state  or  distinj^'uished 
by  extraordinary  reputation,  and  new  publications  of  useful  discoveries 
and  inventions,  will  always  be  acceptable  acquisitions  to  this  Depart- 
ment. Expenditures  for  such  purpose  should,  in  all  cases,  form  a  sepa- 
rate charge  against  the  Department ;  but  none  should  be  incurred  with- 
out its  previous  exi)ress  direction,  unless  in  a  case  of  absolute  necessity. 

"  With  the  exception  of  the  correspondence  with  the  Treasury  De- 
partment respecting  accounts,  and  such  other  correspondence  as  special 
provisions  of  law  or  instructions  of  this  Department  may  require,  no 
correspondence  will  be  held  by  diplomatic  or  consular  representatives 
of  this  Government  with  any  Department  other  than  the  Department  of 
State.  This  injunction  is  especially  applicable  to  communications  to  or 
from  subordinates  of  other  Departments.  This  rule  is,  however,  not 
intended  to  prohibit  a  diplomatic  agent  from  answering  any  reasonable 
inquiry  of  an  officer  of  another  Department  unless  the  inquiry  shall  have 
been  referred  to  the  Department  oi  State,  but  he  may,  if  circumstances 
permit,  answer  such  inquiries  without  awaiting  special  instructions; 
and  in  so  doing  he  should  invariably  send  his  reply,  unsealed  and 
accompanied  by  a  copy  for  the  files,  to  the  Secretary  of  State,  who  will 
decide  whether,  and  how,  it  shall  be  forwarded  to  the  person  addressed, 

"  Drafts  of  correspondence  sent  out  should  not  be  allowed  to  accu- 
mulate, but  should  be  destroyed  as  soon  as  accurately  transcribed  in 
the  proper  record  books. 

"  It  is  the  particular  desire  of  the  Department  that  no  diplomatic 
agent,  or  any  officer  of  the  legation,  should  retain  or  carry  away  with 
him  drafts  or  copies  of  his  official  correspondence.  Obedience  to  this 
request  is  enjoined,  inasmuch  as  it  has  sometimes  hapi)ened,  and  may 
at  any  time  happen,  that  on  the  death  of  the  possessor  of  such  co})ies, 
they  pass  into  the  hands  of  others  not  so  scrupulously  observant  of  their 
con tidential  character. 

"  Under  no  circumstances  should  any  public  or  official  paper  be  pub- 
lished without  the  express  consent  of  the  Department  of  State. 

"  Voluntary  recourse  to  private  letters  to  the  Secretary  of  State  or 
to  officers  of  the  Department  of  State,  on  topics  relating  to  the  official 
business  of  the  legation,  is  discouraged. 

"It  is  considered  best  that  all  communications  of  diplomatic  officers 
to  the  Department  ot  State  should  be  in  the  form  of  regular  dispatches. 
Where  the  whole  dispatch  appears  to  the  writer  to  be  necessarily  of  a 
reserved  or  secret  character,  it  should  be  consjiicuously  marked  as 
'Confidential.'  Where  one  or  more  i)aragraphs  of  a  dispatch  seem  to 
require  any  precaution  against  undue  publicity,  a  red  line  may  be  drawn 
to  mark  them  and  the  word  "confidential"  plainly  written  in  the  mar- 
gin. The  Secretary  of  State,  however,  reserves  the  ultuuate  right  to 
decide  whether  the  suggested  reserve  is  necessary  in  the  public  interest." 

ma. 

"Even  with  all  the  care  that  can  be  exercised,  dispatches  are  not' 
infrequently  published  which  get  their  writers  into  trouble.  It  may  be 
remembered,  for  instance,  that  the  late  ^h:  Marsh  became  involved  in 
an  annoying  difficulty  in  Italy  on  account  of  the  publication  of  a  sen- 
tence (which  he  had\wen  written  in  cipher)  in  one  of  his  confidential 
dispatches,  questioning  the  sanity  of  the  King.     Of  still  more  recent 

631 


§  89a.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

date  is  the  ditficultv  with  Germany,  arisino-  from  the  publication  of  a 
dispatch  of  onr  minister  on  the  pork  question,  which  resulted  ultimately 
in  his  recall,  disguised  under  the  name  of  transfer." 

Schuyler's  Am.  Diplom.,  o4. 

(1)  Confined  to  official  business. 

§  89a. 

The  judiciary  alone  are  competent  to  determine  most  questions  of 
law  in  the  United  States,  and  the  Executive  will  decline  to  give  an 
opinion  as  to  such  questions  when  appealed  to  by  a  foreign  sovereign 
or  his  minister. 

Mr.  Jefferson,  Sec.  of  State,  to  the  minister  of  France,  Mar.  2J,  1793.  MSS. 
Notes,  For.  Leg.  To  same  effect,  see  Mr.  Jefferson  to  Mr.  Hammond,  Apr. 
18,  1793.     MSS.  Notes,  For.  Leg. 

"  It  is  not  competent  for  the  Government  of  the  United  States  to  inter- 
fere with  the  legislation  of  the  respective  States  in  relation  to  the  prop- 
erty of  foreigners  dying  ab  intestato^  or  in  regard  to  inheritances  of  any 
kind,  nor  has  Congress  authority,  under  the  Constitution,  to  pass  a  gen- 
eral law,  as  you  seem  to  suppose,  upon  the  subject." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Fay,  June  19,  1854.     MSS.  Inst.,  Switz. 

"There  has  for  many  years  been  established  in  this  Department  a 
rule  which  inhibits  the  Secretary  of  State  from  giving  letters  of  introduc- 
tion, circular  or  otherwise,  for  persons  going  abroad,  to  the  ministers 
or  consuls  of  the  United  States." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Spencer,  June  20, 1863.     MSS.  Dom.  Let. 

"  We  receive  from  all  monarchical  states  letters  announcing  the  births 
and  deaths  of  persons  connected  nearly  with  the  throne,  and  we  respond 
to  them  in  the  spirit  of  friendship  and  in  terms  of  courtesy.  On  the 
contrary,  on  our  part,  no  signal  incidents  or  melancholy  casualties 
affecting  the  Chief  Magistrate  or  other  functionaries  of  the  Eepublic 
are  ever  ofiicially  announced  by  us  to  foreign  states.  While  we  allow 
to  foreign  states  the  unrestrained  indulgence  of  these  peculiar  tastes, 
we  carefnlly  practice  our  own.  This  is  nothing  more  than  the  courtesy 
of  private  life  extended  into  the  intercoujise  between  nations." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Webb,  July  24,  1-G5.     MSS.  Inst.,  Brazil. 

"  It  is  the  long-established  practice  of  this  Department  to  decline 
giving  advice  upon  a  hypothetical  case  arising  out  of  our  foreign  rela 
tions." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Harriman,  Apr.  27,  1870.     MSS.  Dom.  Let. 

"The  Department,  by  a  new  regulation,  has  ceased  to  give  personal 
letters  of  introduction  to  its  officers  abroad,  except  in  special  cases 
where  they  may  be  necessary  to  the  conduct  of  the  public  business." 

Mr.  Blaiue,  Sec.  of  State,  to  Mr.  Morse,  Mar.  24,  1881.     MSS.  Dom.  Let. 
632 


CHAP.  I  V.J  TO    ACT    UNDER    INSTRUCTIONS.  [§§  896,  !K). 

••  The  inactice  of  grantiug  general  introductory  letters  to  farilitiite 
travel  will  be  discontinued." 

Circular,  Mr.  Blaine,  Sec.  of  State,  Apr.  25,  1881.     MSS.  Inst.,  Arg.  Rep. 

(2)  Usually  in  writing. 

§  89&. 

The  misunderstandings  likely  to  result  from  reliance  on  oral  cominu- 
nicationa  between  Secretaries  of  State  and  foreign  ministers  am  noticed, 
though  with  his  usual  sui)pressed  sarcasm,  in  a  letter  from  Mr.  (Jannnig 
to  Mr.  Pinkney,  then  minister  at  London,  September  23,  1808. 

3  Am.  St.  Pap.  (For.  Rel.),  230.     Mr.  Piukuey's  reply  is  given  in  same  work,  233. 

On  October  9,  1809,  Mr.  Robert  Smith,  then  Secretary  of  State,  pro- 
posed to  Mr.  Jiickson,  British  minister  at  Washington,  that  their  <'()i  le- 
spondence  should  be  in  writing,  and  on  this  being  objected  to  l)y  .Mr. 
Jackson,  Mr.  Smith,  on  October  19,  cited  the  similar  ])ropositioM  pr«'- 
vionsly  made  by  Mr.  Canning  to  Mr.  Pinkney.  The  position  that  im- 
portant diplomatic  correspondence  is  to  be  in  writing  is  reiterated  by 
Lord  Wellesley  in  an  interview  with  Mr.  J.  S.  Smith,  charge  d'atiaiies 
of  the  United  States  at  London,  on  June  16,  1811, 

Mr.  J.  S.  Smith  to  the  Sec.  of  State,  June  16,  1811.  MSS.  Dispatches  Gr.  Brit. 
3  Am.  St.  Pap.  (For.  Rel.),  421.  As  to  the  correspoTulence  with  Mr.  Jackson, 
and  his  subsequent  recall,  see  supra,  ^  84  ;  infra,  'S  107. 

"  No  foreign  Government  or  its  representative  can  take  just  otlense 
at  anything  which  an  officer  of  this  Government  may  say  in  his  private 
capacity.  OflBcial  communications  only  are  to  be  regarded  as  indicating 
the  sentiments  and  views  of  the  Government  of  the  United  States." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  McCurdy,  Jan.  8,  1852.     MSS.  Inst.  Austria. 

Senate  Ex.  Doc.  No.  92,  32d  Cong.,  1st  sess. 
That  official  communications  must  be  to  the  Secretary,  see  supra,  $  79. 
As  to  form  of  conducting  business,  see  infra,  ^  107. 

"  In  connection  with  your  dispatch  permit  me  to  offer  you  a  word  of 
caution  with  regard  to  cipher  telegrams.  You  should  never  give  both 
the  cipher  and  the  text,  as  in  the  present  instance.  The  latter  i.s  all 
that  is  requisite.  *  *  *  Such  telegrams  should  either  be  i>arai)Iirased 
or  their  import  conveyed  in  a  written  note,  in  order  that  no  clue  what- 
ever to  the  Department's  cipher  may  be  obtained." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Morgan,  May  26,  1886.     MSS.  Inst.,  Mex. 

XV.  DIPLOMATIC  AGENTS  TO  ACT  UNDER  INSTRUCTIONS. 

§90. 
For  personal  instructions,  see  §  89. 
A  minister,  unless  in  an  extraordinary  case  of  an  indignity  offered  to 
him  in  his  character  as  an  indivi<'ual,  or  as  a  minister,  cannot,  without 
the  authority  of  his  Government,  threaten  to  break  oft'  diplomatic  inter- 
course with  the  sovereign  to  whom  he  is  sent. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Jackson,  Apr.  8,  1856.     MSS.  In.st.,  Austria. 

633 


§  90.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

When  war  was  carried  on  between  South  American  countries  in  which 
we  were  represented  by  resident  ministers,  and  in  whose  waters  we  had 
ships  of  war,  watching  our  interests,  it  was  held  ''inconvenient  to  give 
specific  instructions  for  the  Government  of  either  its  (our)  political  rep- 
resentatives or  its  naval  agents  in  regard  to  many  possible  contingen- 
cies. Powers  concerning  political  questions  distinguished  from  naval 
affairs  are  intrusted  to  the  care  of  the  ministers  of  the  United  States  ; 
and  the  President's  instructions  are  communicated  through  this  Depart- 
ment. Responsibilities  of  a  peculiar  character  are  devolved  upon  the 
commander  of  the  squadron ;  and  the  President's  instructions  are  con- 
veyed through  the  Navy  Department.  *  *  *  in  the  absence  ot 
instructions,  the  agents  of  the  two  classes,  if  practicable,  will  confer 
together  and  agree  as  to  any  unforeseen  emergencies  which  may  arise, 
and  in  regard  to  which  no  specific  instructions  for  the  common  direc- 
tion of  both  may  be  given  by  the  President." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Asbotlj,  May  18,  1867.     MSS.  luat.,  Arg.  Rep. 

"  Diplomatic  agreements,  between  agents  of  foreign  powers,  hastily 
gotten  up  in  a  foreign  country,  under  the  pressure  of  revolutionary 
dangers,  may  be  entirely  erroneous  in  their  objects,  as  they  must  be 
incomplete  in  form,  and  unreliable  for  want  of  adequate  authority. 
Moreover,  they  unavoidably  tend  to  produce  international  jealousies 
and  conflicts.  You  will,  therefore,  carefully  abstain  from  entering  into 
any  such  negotiations,  except  in  extreme  cases,  to  be  immediately  re- 
ported to  this  Department." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Pruyn,  Aug.  22,  1868.  MSS.  Inst.,  Venez.    See 
infra,  ?  102. 

The  inconvenience  of  disagreement  between  a  diplomatic  agent  in  a 
foreign  land  and  the  commander  of  our  naval  forces  "  is  less  than  the 
inconveniences  which  must  result  from  giving  authority  to  a  minister 
in  one  state  to  control  the  proceedings  of  a  fleet  of  whose  condition  he 
is  not  necessarily  well  informed,  and  whose  prescribed  services  are  re- 
quired to  be  performed  not  only  in  the  vicinity  of  its  minister,  but  also 
in  distant  fields  over  which  he  Las  no  supervision.  Zi^or  would  it  be 
more  expedient  to  give  a  general  authority  to  the  commanding  officer 
of  a  squadron  to  control  or  supersede  the  proceedings  of  political  repre- 
sentatives of  the  United  States  in  the  several  states  which  he  might 
have  occasion  to  visit." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Asboth,  Maj-  18,  1867.     MSS.  lust.,  Arg.  Eep. 
As  to  Mr.  Gallatiu'a  complaints  of  the  rigidity  of  his  iustructions,  see  letters  to  Mr. 

J.  Q.  Adams,  2  Gallatin's  Writings.     See  also  Mr.  Webster's  letters  to  Mr. 

Cass,  Nov.  14,  1842;  MSS.  Inst.,  France;  (5  Webster's  Works,  3G9. 
As  to  Mr.  Jefferson's  withdrawalof  treaty  with  England  by  Messrs.  Monroe  and 

Pinkncy,  in  consequence  of  non-conformity  with  instrnctions,  see  infra, 

§  1506.     Monroe  Pap.,  Dept.  of  State. 

634 


CHAP.  IV.]  SOLE    ORGANS    OF    THEIR    NATION.  [§91. 

XVI.    COMMUNICATIONS    FROM    FOUEIGNEUS    ONLY   TO    BE   RECEIVED 
TIIROCGH  DIPLOMATIC  REPRESENTATIVES. 

S91. 

That  self-constituted  missions  to  foreign  states  are  illegal,  see  infrn,  $  109. 

Geueral  Washington,  when  President,  declined  to  receive  Messrs. 
Talleyrand,  Beaumetz,  and  Liancourt,  who  were  then  refugees  from 
France,  on  the  ground  that  "  the  French  Republic  would  have  learnt 
with  disgust  that  they  had  been  received  by  the  President.  He  having 
resolved  not  to  receive  them,  I  held  it  to  be  my  duty  'to  do  violence  to 
uiy  individual  regard  for  their  characters  by  merging  it  in  political  con- 
siderations." 

Mr.  Randolph,  Sec.  of  State,  to  Mr.  Pinckney,  Dec.  23,  1794.     MSS.  Inst.,  Min- 
isters.    They  had  letters  of  introduction  from  Messrs.  Pinckney  and  Jay. 

The  Department  of  State  can  receive  no  communication  from  sub 
jects  of  another  country  on  international  matters,  except  through  the 
minister  of  such  country. 

Mr.  Monroe,  Sec.  of  State,  to  Admiral  Cochrane,  Apr.  5,  1815.     MSS.  Notes, 
For.  Leg. 

"  Several  days  ago  I  received  information  through  a  confidential  chan- 
nel that  Joseph  Bonaparte,  with  several  companions,  had  arrived  incog. 
at  New  York.  *  *  *  And  yesterday  1  received  the  further  infor-, 
mation  that  he  was  on  his  way,  accompanied  by  Lewis,  to  report  himself 
to  me  personally,  still  under  this  disguise.  *  *  *  Whatever  motives 
may  have  produced  this  step,  the  palpable  impropriety  of  it,  especially 
as  its  success  would  involve  my  participation  in  a  clandestine  transac- 
tion, determined  me  at  once  to  guard  against  it.  I  have  accordingly 
written  to  Mr.  Rush  to  have  the  travelers  diverted  from  their  purpose 
on  their  arrival  at  Washington." 

Mr,  Madison,  President,   unofficial,  to  Mr.  Monroe,  Sec.  of  State,  Montpelier, 
Sept.  12,  181.').     Monroe  Pap.,  Dept.  of  State. 

"  To  have  come  at  any  time  to  the  seat  of  your  jiublic  residence  with 
the  ulterior  view  of  a  personal  visit,  without  a  ])revious  sanction  derived 
through  the  usual  channel,  might  have  been  thought  not  entirely  re- 
spectful, if  prudent.  But  so  to  invade  the  sanctity  of  your  domestic 
retreat  really  looks  to  me,  independent  of  all  other  considerations,  as 
scarcely  less  than  an  outrage.  *  *  *  I  reinembei- that  when  Talh\v- 
rand  was  in  Philadelphia,  as  ex-bishop  of  Antun,  General  Washing- 
ton declined  being  visited  bj^  him,  although  he  made  known  a  wish  to 
wait  on  him." 

Mr.  Rush,  Atty.  Geu.,  to  Mr.  Madisou,  President,  (uuotticial),  Scid,  17.  IHl.'t. 
Monroe  Pap.,  Dept.  of  State.    See,  as  to  the  reception  of  Kossuth,  supra,  ■^  48. 

"Although  it  is  usual  for  this  Department  to  forward  letters  to  per- 
sons abroad,  which  may  be  sent  hither  by  members  of  Congress  for 
that  purpose,  the  punctilio  required  in  Europe  in  communication  with 

636 


§  91.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

crowned  heads  renders  it  necessary  to  make  letters  to  sucli  persouages 
an  exception.  The  rnle  there  is  that  no  communication  intended  tor 
the  sovereign,  even  a  letter  accrediting  a  foreigu  minister,  can  be  pre- 
sented to  the  person  to  whom  it  is  addressed,  unless  a  copy  shall  pre- 
viously be  communicated  to  the  proper  minister  of  the  sovereign.  The 
reason  for  this  rule  is  iTuderstood  to  be  to  prevent  any  letters  of  an 
improper  character  from  being  received  by  the  sovereign." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Eice,  July  16,  1861.     MSS.  Dom.  Let. 

No  officer,  civil,  military,  or  naval,  can  properly  carry  on  an  official 
correspondence  with  a  foreign  Government,  except  through  the  Depart- 
ment of  State,  or  its  diplomatic  representative  at  the  seat  of  such  Gov- 
ernment. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Wines,  Jan.  25,  1872.     MSS.  Doin.  Let. 

"  In  reply,  I  am  directed  by  the  Secretary  of  State  to  inform  you 
that  the  usages  of  foreign  intercourse  require  that  communications 
from  citizens  or  subjects  of  foreign  Governments  to  the  President 
should  be  addressed  through  the  minister  of  the  nation  of  which  the 
writer  is  a  subject  or  citizen.  Moreover,  it  is  not  the  province  of  the 
executive  branch  of  this  Government,  as  a  general  rule,  to  give  atten- 
tion to  a  claim  or  interest  involving  private  rights  only." 

Mr.  Hale,  Asst.  Sec.  of  State,  to  Mr.  Kuhlmann,  May  21,  1«72.     MSS.  Dom.  Let. 

A  foreigner  abroad,  desiring  to  communicate  with  this  Government, 
must  do  so  through  the  accredited  representative  of  his  Government  at 
Washington. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Mantilla,  Feb.  16,  1875.     MSS.  Notes,  Spain. 

"  Where  addresses  were  to  be  presented  on  behalf  of  the  jjeople,  or 
a  body  of  the  people,  of  a  foreign  country,  it  was  usual  that  an  appli- 
cation should  be  made  through  the  foreigu  minister  accredited  to  the 
United  States,  and,  in  any  event,  that  the  minister  should  be  consulted, 
and  the  contemplated  proceeding  prove  acceptable  to  him." 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Messrs.  Parnell  and  Power,  Oct.  19, 
1876.     MSS.  Dom.  Let. 

On  October  11,  1876,  Mr.  Parnell  and  Mr.  O'Connor  Power,  members 
of  the  British  Parliament,  "  sent  their  cards  to  the  President,  at  his 
hotel,  when  on  a  visit  to  New  York,  and,  being  admitted,  requested  an 
opportunity  to  present  an  address  on  the  occurrence  of  the  Centennial 
with  which  they  stated  they  were  charged ;  and  the  President  there- 
upon replied  that  he  would  shortly  be  in  Washington  when  the  matter 
might  be  disposed  of.  *  *  *  They  were  informed  (on  October  17, 
1876,)  by  a  note  that  before  they  could  be  so  received,  it  would  be  neces- 
sary that  they  should  submit  the  address  for  approval  to  the  Depart- 
ment of  State.     At  this  date  the  address  appeared  in  the  public  prints. 

"  Upon  the  18th  of  October,  a  communication  was  received  at  this 
636 


CHAP.  IV.]  SOLE    ORGANS    OF    THEIR    NATION.  [§91- 

Department,  signed  by  these  gentlemen,  asking  an  opportunity  to  pre- 
sent the  address,  and  shortly  after,  and  before  the  address  had  been 
examined,  they  called  upon  Mr.  Cadwalader,  then  Acting  Secretary  of 
State  in  my  absence,  stating  the  object  of  their  mission.  Their  atten- 
tion was  called  to  the  fact  that  the  Department  of  State  could  not 
properly  act  in  such  a  matter  unless  the  address  had  been  submitted  to 
the  British  minister.  They  stated  their  unwillingness  to  do  so  directly, 
but  were  understood  to  acquiesce  entirely  in  the  propriety  of  its  being 
submitted  by  the  Department  to  Her  Majesty's  representative. 

"A  copy  of  their  note  of  October  17,  with  the  address,  was  there- 
upon immediately  sent  to  Sir  Edward  Thornton,  for  his  perusal,  who 
replied  ui)on  the  same  day  that  it  would  have  aftbrded  him  pleasure  to 
have  asked  permission  to  present  these  gentlemen  to  the  President, 
had  they  applied  to  him  for  that  purpose  as  was  usual;  but  with  regard 
to  the  address,  that  it  contained  such  reflections  on  the  conduct  of  Ilcr 
Majesty's  Government  that  he  should  not  feel  justified  in  taking  part  in 
its  presentation  without  express  instructions  from  his  Government  to 
do  so. 

"  Mr.  O'Connor  Power  and  Mr.  Parnell  were  thereupon  informed  by 
the  Acting  Secretary  of  State,  by  note  dated  the  following  day,  of  the 
substance  of  the  reply  of  the  British  minister,  and  that  it  would  not 
seem  courteous  to  their  own  representative  or  their  own  Government  to 
takeany  stepsfor  a  formal  presentation  of  the  addressunder  such  circum- 
stances, but  that  arrangements  would  gladly  be  made  for  their  personal 
presentation  to  the  President  if  it  were  desired. 

"  Upon  the  20th  of  October,  these  gentlemen  again  addressed  the  De- 
partment, renewing  the  request  that  the  address  be  received,  and  suggest- 
ing that  their  representative  did  not  appear  ro  have  any  objection  to  the 
language  of  the  address,  and  that  it  might  still  be  presented,  although 
he  declined  to  take  part  therein ;  whereupon  they  were  informed  that 
as  the  British  minister  had  based  his  refusal  to  take  part  in  any  pre- 
sentation of  the  address  upon  the  contents  of  the  address  itself,  it  was 
not  possible  to  comply  with  their  wishes. 

"No  further  communication  of  any  kind  has  taken  place  upon  the 
question,  and  in  making  to  you  this  statement,  and  in  forwarding  to 
you,  as  I  do,  at  your  request,  a  copy  of  all  the  correspondence  herciu 
referred  to,  including  a  copy  of  the  proposed  address,  I  have  furnished 
you  with  all  the  information  in  my  possession  on  the  subject. 

"  The  i)osition  which  the  Department  was  compelled  to  assume  was 
that,  while  it  was  quite  competent  to  present  Mr.  O'Connor  Power  and 
Mr.  Parnell  to  the  President  individually,  they  being  gentlemen  of 
standing  and  position  at  home,  and  members  of  the  Parliament  of  llic 
United  Kingdom,  in  order  that  an  opportunity  might  be  atibrded  them 
of  expressing,  as  individuals,  the  good  wishes  of  the  persons  at  whose 
instance  they  were  sent  to  the  United  States  on  the  occasion  of  the 
Centennial,  at  the  same  time  a  proper  respect  for  the  Government  of 

637 


§  92.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Her  Majesty,  whose  subjects  they  were,  and  for  Her  Majesty's  repre- 
sentative in  the  United  States,  rendered  it  entirely  incompetent  to  take 
any  steps  towards  the  presentation  of  an  address  to  the  President  from 
the  subjects  of  another  and  a  friendly  power,  political  in  its  character, 
and  the  contents  of  which  were  deemed  by  the  representative  of  that 
power  of  such  a  nature  as  to  compel  him  to  refuse  to  take  any  part  in 
its  presentation. 

"  Your  communication  requests  from  me  information  as  to  the  posi- 
tion occupied  by  this  Deijartmeut  '  at  this  moment'  on  the  subject.  On 
this  point  I  have  the  honor  to  say  that  I  am  not  informed  as  to  the 
precise  matter  before  your  committee  at  the  present  time,  nor  as  to  the 
similarity  between  the  address  which  it  is  proposed  now  to  present  with 
that  which  the  President  was  unable  to  receive. 

"  If,  however,  the  address  is  in  general  form  or  substance  the  same, 
I  may  remind  you  that  its  reception  was  refused  because  Her  Majesty's 
minister  found  it  objectionable  in  tone  towards  his  Government,  and  it 
is  not  likely  to  be  less  objectionable  when  presented  in  another  quarter.'' 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Swann,  chairman  of  the  Committee  on  Foreign 
Affairs,  House  of  Representatives,  Dec.  29,  1876.     MSS.  Eeport  Book. 

XVII.  DIPLOMATIC  AGENTS  PROTECTED  FROM  PROCESS. 

(1)  Who  are  so  privileged. 

§  92. 

A  secretary  of  the  legation  is  entitled  to  all  the  privileges  of  a  min- 
ister. 

Res.  V.  De  Longchamps,  1  Dall.,  111. 

And  so  of  an  attach^. 
U.  S.  V.  Benner,  Bald.,  234. 

A  charge  d'affaires  is  privileged  from  arrest  for  debt  while  on  his  way 
to  his  own  country,  even  though  his  diplomatic  functions  have  termi- 
nated. 

Dupont  V.  Pichon,  4  Dall.,  321, 

The  laws  of  the  United  States  which  i)unish  those  who  violate  the 
privileges  of  a  foreign  minister  are  equally  obligatory  on  the  State 
courts  as  upon  those  of  the  United  States,  and  it  is  equally  the  duty  of 
each  to  quash  the  proceedings  against  any  one  having  such  privileges. 
In  such  cases  the  injured  party  may  seek  redress  in  either  court  against 
the  aggressor,  or  he  may  prosecute  in  federal  courts  under  federal 
statutes  (1  Stat.,  117 ;  K.  S.,  §  4064).  And  the  circuit  court  cannot 
quash  proceedings  against  a  public  minister  pending  in  a  State  court ; 
638 


CHAP.  IV.]  PROTECTED    FROM    PROCESS.  [§  92. 

nor  cau  the  court  in  any  way  interfere  with  the  jurisdiction  of  tli<-  courts 
of  a  State. 

Ex  parte  Cabrera,  1  Wash.  C.  C,  232. 

The  certificate  of  the  Secretary  of  State  is  the  best  evidence  to  prove 
the  diplomatic  character  of  a  person  accredited  as  a  nniiister  by  the 
Government  of  the  United  States.  But  parol  evidence  can  be  a<lmittcd 
to  prove  the  period  when  a  person  was  considered  by  the  Government 
of  the  United  States  as  a  minister. 

U.  S.  r.  Liddle,  2  Wash.  C.  C,  20.5. 

Proof  that  a  person  assaulted  is  received  and  recognized  by  the 
Executive  of  the  United  States  is  conclusive  as  to  his  public  character, 
and  that  he  is  entitled  to  all  the  immunities  of  a  foreign  minister.  But 
if  a  foreign  minister  commits  the  first  assault  he  forfeits  his  immunity 
so  far  as  to  excuse  the  defendant  for  returning  it. 

U.  S.  V.  Ortega,  4  Wash.  C.  C,  531. 

Under  the  act  of  April  30,  1790,  the  arrest  of  the  domestic  servant  of 
a  foreign  minister  is  illegal,  the  process  invalid,  and  persons  knowingly 
concerned  in  the  arrest  liable  to  prosecution.  If,  however,  the  domestic 
be  an  inhabitant  of  the  United  States,  and  shall  have  contracted  debts 
prior  to  his  entering  into  the  service  of  the  minister,  which  are  still 
unpaid,  he  is  not  entitled  to  the  benefit  of  the  act  concerning  crimes 
that  gives  this  immunity,  nor  shall  any  person  be  proceeded  against  for 
such  arrest  unless  the  name  of  the  domestic  be  registered  in  the  Secre- 
tary of  State's  office,  and  transmitted  to  the  marshal  of  the  district  in 
which  Congress  shall  reside. 
1  Op.,  26,  Randolph,  1792. 

The  late  governor  of  Guadaloupe,  who  had  caused  a  vessel  to  be 
seized  and  condemned,  is  not  exempt  from  suit  and  arrest  in  the  courts 
of  Pennsylvania  whilst  here  as  a  prisoner  to  the  British  forces  on 
parole;  and  if  the  circumstances  attending  the  seizure  were  such  as 
will  constitute  a  defense,  they  must  be  pleaded. 

If  the  seizure  was  an  official  act — done  under  color  of  the  powers 
vested  in  him  as  governor — that  will  be  an  answer,  as  the  extent  of 
his  authority  could  be  determined  only  by  the  constituted  authorities 
of  his  own  nation  ;  but  it  is  not  a  case  for  the  interposition  of  the  Gov- 
ernment. 

1  Op.,  45,  Bradford,  1794. 

A  foreign  naval  officer  is  not  privileged  from  arrest. 

1  Op.,  49,  Bradford,  1794. 

A  slave  or  other  person  subject  to  the  authority  and  control  of  another 

639 


§  92.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

is  uot  privileged  from  being  retaken  by  his  or  her  superior,  by  engag- 
ing in  the  service  of  a  foreign  minister. 

1  Op.,  141,  Lincoln,  1804. 

A  person  accredited  as  a  foreign  minister  to  the  United  States,  but 
not  received  as  representing  any  recognized  Government,  and  against 
whom  a  warrant  is  issued  for  unlawful  recruiting,  has  no  diplomatic 
l^rivilege  of  right,  and  whatever  privilege  is  accorded  to  him  by  courtesy 
should  be  withdrawn  as  soon  as  there  shall  be  cause  to  believe  that  he 
is  engaged  in  or  contemplates  any  act  inconsistent  with  the  laws,  the 
peace,  or  the  public  honor  of  the  United  States. 

8  Op.,  473,  Gushing,  1855. 

"  The  result  of  the  President's  reflections  respecting  the  right  you 
(Mr.  Cabrera,  who  claimed  exemption  from  criminal  prosecution  on 
ground  of  being  connected  with  the  Spanish  legation)  assert  of  being 
exempted  from  the  ordinary  jurisdiction  of  the  country,  is,  that  so  far 
as  the  diplomatic  quality,  which  is  made  the  support  of  this  privilege, 
has  been  conferred  by  the  envoy  of  Spain,  its  attributes  must  be  claimed 
only  through  him ;  but  if  you  have  been  invested  bj^  His  Catholic 
Majesty  directly  with  a  iniblic  character  entitling  you  to  exemption 
from  the  cognizance  of  our  tribunals,  all  the  means  in  the  competency 
of  the  Executive  will  be  used  to  assure  to  you  the  privilege  on  your 
forwarding  to  me  the  evidence  of  your  appointment,  authenticated  by 
his  said  Majesty  or  his  minister  of  foreign  affairs." 

Mr.  Madison,  Sec.  of  State,  to  Mr.  Cabrera,  Oct.  17,  1804.     MSS.  Dom.  Let. 

"  Far  would  it  be  from  the  intention  of  the  American  Government  to 
draw  within  its  rigorous  limits  the  exemption  from  ordinary  legal  proc- 
ess of  a  foreign  public  officer.  It  would  extend  to  them  a  liberal  meas- 
ure of  time,  and  a  full  portion  of  indulgence  for  the  execution  of  the 
trust,  and  for  departure  after  its  completion.  But  it  cannot  perceive 
the  justice  of  extending  these  privileges  beyond  their  limits  as  sanc- 
tioned by  custom  for  purposes  of  injustice  and  wrong." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  d'Anduaga,  Nov.  2,  1821.     MSS.  Notes,  For. 
Leg. 

If  members  of  foreign  legations  are  charged  with  criminal  misconduct 
in  the  place  of  their  residence,  although  they  may  not  be  open  to  crimi- 
nal prosecution,  the  President  will  demand  an  explanation  so  that  he 
can  take  proper  action. 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Tacou,  Dec.  10,  1828.     MSS.  Notes,  For.  Leg. 
Same  to  same,  Feb.  7,  1829. 

"Xone  but  citizens  of  the  United  States  with  passports  from  this 

Department,  and  those  who,  being  citizens,  are  certainly  known  to  be 

entitled  to  and  receive  passi)orts  from  officials  abroad  authorized  by 

law  to  grant  them,  have  properly  any  right  to  i:)rotection  from  our  lega- 

640 


CHAP.  IV.]  PROTECTED    FROM    PROCESS.  [§  92. 

tioDS  and  consulates.  This  privilege,  however,  may.  in  special  cases, 
and  for  a  limited  period,  be  extended  to  foreigners,  and  even  to  Turkish 
subjects  who  become  official  'employes,' so  long  as  they  remain  attached 
to  the  legation  and  consulates.  The  custom,  it  is  understood,  had  its 
origin  in  the  difficulty  of  finding  American  citizens  skilled  in  the  lan- 
guages of  the  East,  and  the  right  should  therefore^be  confined  solely  to 
employes  indispensably  necessary  to  our  rei)resentatives.  it  is  to  be 
used  with  caution  in  all  cases,  and  does  not  intend  or  tolerate  the 
employment  of  persons  in  order  to  shelter  them  from  justice,  or  such  as 
may  be  justly  obnoxious  to  the  Government  within  whose  jurisdiction 
the  right  is  exercised." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Williams,  Feb.  20,  1858.     MSS.  Inst.,  Turki-.v. 

"The  system  of  employing  Turkish  subjects  (in  our  legation  to 
Turkey)  in  subordinate  capacities,  although  sometimes  necessary,  is 
an  encroachment  upon  international  law,  as  maintained  between  civil- 
ized states,  and  is  unknown  in  our  statutory  legislation;"  and  the  Gov- 
wnment  of  the  United  States  will  not,  except  in  strong  cases,  interfere 
for  the  protection  of  the  persons  so  employed. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Morris,  Dec.  2:5,  18H7.     MSS.  Iiist.,  Turkey. 

"The  publicists,  whose  writings  are  within  reach  of  this  Department, 
mention  no  such  qualification  of  the  right  of  employing  a  courier  [viz., 
that  the  immunities  of  a  courier  from  a  legation  do  not  attach  to  a  person 
ai)pointed  in  the  country  where  the  legation  is  situated].  That  right 
is  regarded  by  them  as  unlimited,  or  as  only  subject  to  the  discretion  of 
the  legation  in  the  choice  of  a  person  for  the  discharge  of  the  trust. 
It  is  a  general  principle  conferred  by  public  law,  which,  in  the  interest 
of  all  nations,  ought  not  to  be  restricted  by  municiiial  law,  but,  if  nec- 
essary or  advisable,  should  be  confirmed  and  facilitated  by  the  latter. 
It  is  true  that  in  some  countries  municipal  enactments  are  necessary 
to  secure  to  tlie  members  of  foreign  legations  those  immunities  under 
the  law  of  nations  to  which  they  are  entitled.  This  Government  l)ecame 
sensible  of  this  early  in  its  career,  for  so  long  ago  as  the  30th  of  A] nil, 
1790,  Congress  declared  void  any  process  sued  out  of  any  court  in  tiie 
United  States  against  any  foreign  minister  or  any  domestic  of  his,  and 
made  this  and  the  serving  of  such  process  a  penal  oflense.  Although 
bearers  of  dispatches  are  not  expressly  mentioned  in  the  statute  adverted 
to,  as  its  object  was  to  impart  to  every  n)ember  of  a  foreign  legation 
that  immunity  to  which  he  may  be  entitled  under  the  law  of  nation's, 
no  doubt  is  entertained  that,  if  the  statute  were  violated  in  resj)ect  to 
any  bearer  oi'  dispatches  duly  appointed  by  the  head  of  a  foreign  leg;«- 
tion  in  this  country,  the  violators  would  be  puuishabl*'  undei  that 
statute. 

*  *  *  "No  appointment  in  a  foreign  country  of  a  i)ersoii  as  courier 
under  arrest,  or  liable  to  arrest,  would  be  approved  by  this  Dei)artment, 

S.  Mis.  162— VOL.  I 41  ^1 


§  92.]  DIPLOMATIC    AGENTS.  [CHAP.  IV, 

especially  if  such  appoiutmeut  was  iu  any  way  intended  to  screen  the 
appointee  from  his  liabilities  under  the  municipal  law." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Freyre,  Dec.  17, 1870.     MSS.  Notes,  Peru. 
As  to  bearers  of  disitatches,  see  also  i^^  97. 

"The  executive  department  of  this  Government  can  take  no  proceed- 
ings against  persons  who  have  the  immunity  attached  to  the  diplomatic 
character  except  to  ask  their  own  Government  to  recall  them  from  this 
country." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Darr,  Feb.  2, 1871.     MSS.  Dom.  Let. 

"The  Department  has  been  fully  informed  of  the  origin  and  progress 
of  the  latter  question  by  Mr.  Heap,  the  experienced  and  intelligent  con- 
sul of  the  United  States  at  Tunis.  The  opinion  which  you  express,  that 
it  is  advisable  for  the  United  States  to  limit  to  as  few  as  may  be  abso- 
lutely necessary  the  persons  exempt  from  the  local  jurisdiction  by  being 
attached  to  the  legation  and  consulates  in  Turkey  and  its  dependencies, 
is  entirely  approved  by  the  Department,  and  has  for  some  time  past 
been  urged  upon  the  officers  of  the  United  States  in  that  quarter.  It  is 
understood  that  formerly  there  were  great  abuses  in  this  respect.  It 
was  long  before  their  extent  could  be  ascertained,  and  it  was  found 
difficult  to  correct  them  from  the  eagerness  with  which  persons  sought 
the  protection,  so  called,  of  the  United  States,  and  the  reluctance  oi 
ministers  and  consuls  to  refuse  it.  No  such  immunity  should  be  ex- 
tended to  any  person  not  legally  entitled  to  it,  and  then,  as  you  remark, 
it  should  be  maintained  with  firmness  in  behalf  of  those  upon  whom  it 
may  have  been  deliberately  and  considerately  bestowed." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  McVeagh,  Apr.  18, 1871.     MSS.  Inst.,  Turkey. 

The  true  test  of  privilege  from  suit  of  diplomatic  representatives 
"is  whether  the  exercise  of  the  municipal  authority  in  question  is  an 
unreasonable  interference  with  the  freedom  with  which  the  functions  oi 
the  diplomatic  representatives  must  be  performed."  The  exemptiou 
"does  not  apply  to  the  contentious  jurisdiction  which  may  be  conferred 
on  these  (municipal)  tribunals  by  the  minister  voluntarily  making  him- 
self a  party  to  a  suit  at  law." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jay,  July  18, 1874.  MSS.  Inst.,  Austria.  See  also 
Mr.  Fish  to  Mr.  Jay,  Sept.  9, 1874  ;  Oct.  26, 1874.     Ihid. 

As  to  what  is  contained  under  the  term  "commencing  a  litigation,"  see  Mr. 
Fish  to  Mr.  Jay,  Dec.  29, 1874  ;  Mr.  Fish  to  Mr.  Jay,  Jan.  13, 187.S.    Hid. 

"The  tendency  of  opinion  iu  regard  to  immunities  of  diplomatic  agents 
is  believed  to  be  strongly  toward  restricting  them  to  whatever  may  he 
indispensable  to  enable  the  agents  to  discharge  their  duties  with  con- 
venience and  safety.  The  extreme  doctrine  of  immunity,  which  was 
the  necessity  of  an  age  of  barbarism  and  of  the  intercourse  of  uncivilized 
nations,  has  hapjjily  yielded  to  the  progress  of  Christianity  and  of  mod- 
ern culture.  *  *  *  ^u  envoy  is  not  clothed  with  diplomatic  immu- 
642 


CHAP.  IV.]  PROTECTED    FROM    PROCESS.  [§  92. 

uity  tu  enable  biui  to  indulge  with  impuuity  in  personal  conlioversy,  or 
to  escape  liabilities  to  which  he  otherwise  might  be  subjected.  The 
assertion  of  these  immunities  should  be  reserved  for  more  important  and 
delicate  occasions,  and  should  never  be  made  use  of  when  the  facts  ot 
the  particular  case  expose  theeuvoy  to  the  suspicion  that  private  inter- 
est or  a  desire  to  escape  personal  or  pecuniary  liability  is  the  motive 
which  induces  it." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jay,  Nov.  29, 1S74.     MSS.  Iiiht.,  Austria. 

Moorish  agents  employed  by  United  States  citizens  in  the  sea-i)oits 
of  Morocco  to  do  business  in  the  interior,  may  be,  since  necessary  to  such 
business,  placed  under  the  protection  of  the  United  States,  and  granted 
safe  conducts  as  such. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Mathews,  May  27, 1878.     MSS.  Inst.,  Barb.  St. 
As  to  whether  a  Spaniard,  a  messengor  in  the  United  States  legation  at  Madrid, 

can  be  compelled  to  military  servicti  in  Si>ain,  see  Mr.  Evarts,  Sec.  of  State, 

to  Mr.  Lowell,  Feb.  25,  187<J.     MSS.  Inst.,  Spain. 

The  wife  of  a  secretary  of  a  foreign  legation  in  this  country  is,  while 
with  him  in  his  official  capacity,  subject,  in  respect  to  her  personal. 
estate,  to  the  laws  of  the  country  he  represents. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Lawrence,  Mar.  31, 1883,  citing  Wheat, 
Int.  Law,  300-1  (Dana's  ed.);  4  Phill.  Int.  Law,  122-3.     MSS.  Doni.  Let. 

"  Foreigners  in  the  employ  of  the  United  States  consulates  and  their 
agencies  in  Turkey  have  a  right  to  the  protection  of  the  United  States 
in  all  matters  pertaining  to  their  office  and  personal  safety,  but  not  in 
regard  to  their  commercial  affairs  and  private  business,  for  protection 
in  which  they  must  look  to  the  representatives  of  the  nation  of  which 
they  are  citizens." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Nov.  6,  1&85.    MSS.  Inst.,  Turkey. 

"  In  a  recent  case  (Taylor  v.  Best)  the  true  position  and  liability  of  a 
secretary  of  legation  accredited  to  the  court  of  England  by  a  foreign 
sovereign,  and  acting  in  the  absence  of  his  ambassador  as  charge  d'af- 
faires, were  most  elaborately  discussed;  and  it  was  held,  first,  that  such 
an  official  was  entitled  to  all  the  ])rivileges  of  an  ambassador;  second, 
that  he  did  not  forfeit  his  privilege  by  engaging  in  mercantile  ])ursuits 
here,  and  third,  that  if  a  foreign  minister  voluntarily  attorns  to  the 
jurisdiction  of  the  courts  of  this  canntry  he  is  estopi)ed  from  ai)plying 
to  the  courts  to  stay  proceedings  on  the  ground  of  his  i)rivilege;  but  it 
seems  to  have  been  doubted,  in  the  course  (►f  the  arguments,  whether 
the  privileges  of  an  ambassador  or  foreign  minister  extend  to  prevent 
his  being  sued  in  the  courts  of  this  country,  or  only  to  i)rotect  him  from 
process  which  may  affect  the  sanctity  of  his  person  or  his  comfort  or 
dignity.  In  the  course  of  the  case  the  qirestion  as  to  the  liability  of  a 
domestic  servant  of  an  ambassador,  when  engaging  in  mercantile  trans- 
actions, being  raised,  it  was  hehl  that  the  same  privilege  does  not  extend 
to  them  as  to  the  ambassador,  for,  as  Mr.  J.  Maule  said,  'the  privilege 
is  not  that  of  the  servant,  but  of  the  ambassador ;  it  is  based  on  the  as- 

643 


§  93.]  DIPLOMATIC    AGENTS.  [CHAP.  ivj 

sumption  that  by  the  arrest  of  any  of  his  household  retinue  his  i)er8on£ 
comfort  and  state  may  be  affected.'" 

Abdy'sKent  (2ed.),  121. 

"A  diplomatic  representative  pOiSsesses  immunity  from  the  criminal' 
and  civil  jurisdiction  of  the  country  of  his  sojourn  ;  and  cannot  be  sued, 
arrested,  or  punished  by  the  law  of  that  country.  IsTeither  can  he  waive 
his  ])rivilege,  for  it  belongs  to  his  ofBce,  not  to  himself.  It  is  not  to  be 
supposed  that  any  rei)resentative  of  his  country  would  intentionally 
avail  himself  of  this  right  to  evade  just  obligations  incurred  either  by 
himself  or  the  members  of  his  mission. 

"A  secretary  of  legation  is,  according  to  the  admitted  principles  of 
international  law,  a  '  public  minister.'  His  personal  privileges,  immuui- 
ties,  domiciliary  privileges,  and  exemptions  are  generally  those  of  tl;t 
minister  of  whose  official  household  he  forms  a  part. 

"The  personal  immunity  of  a  diplomatic  agent  extends  to  his  house- 
hold, and  especially  to  his  secretaries.  Generally,  his  servants  share 
therein,  but  this  does  not  always  apply  when  they  are  citizens  or  sub- 
jects of  the  country  of  his  sojourn.  Cases  have  arisen  where  a  diplo- 
matic agent  has' claimed  for  a  native  servant  exemption  from  military 
service.  His  right  to  do  so  is  not  clear,  and  in  future  the  diplomatic 
agents  of  the  United  States  are  advised  against  questioning  the  right 
of  the  native  Government  to  claim  such  service  from  one  of  its  subjects 
in  his  employ.  It  is  to  be  expected  that  the  claim,  if  made,  will  be  pre- 
sented courteously  to  the  chief  of  the  mission. 

"It  is  customary  for  a  foreign  minister  to  furnish  to  the  local  govern- 
ment a  list  of  the  members  of  his  household,  including  his  hired  serv- 
ants, with  a  statement  of  the  age  and  nationality  of  each.  When  this 
is  requested  it  should  always  be  given.     (See  as  to  asvluin,  infra,  §  104.) 

"In  most  Mohammedan  and  Oriental  countries,  the  rights  and  immu- 
nities of  extraterritoriality  have  been  secured  by  treaty  to  foreign  rep- 
resentatives, including  to  some  extent  consular  officers. 

"Among  the  rights  of  extraterritoriality  is  that  of  criminal  and  civil 
jurisdiction,  which  will  be  specially'  treated  under  its  appropriate  head- 
ing." 

Printed  Pers.  Inst.  Dip.  Agents,  188r>. 

(2)  Illegality  of  prockss  against. 
§93. 

The  entering  a  public  minister's  house  to  serve  an  execution  willl 
either  be  absorbed  in  the  arrest,  as  being  necessarily  associated  with 
it,  if  that  be  found  criminal,  or,  if  the  arrest  be  admissible,  must  be 
punished,  if  at  all,  under  the  law  of  nations. 
1  Op.,  26,  Randolph,  1792.* 

The  President  will  not  interfere  with  judicial  proceedings  between 
an  individual  and  the  commissioner  of  a  foreign  nation  where  the  con- 
troversy may  have  a  legal  trial,  unless  the  suit  grew  out  of  acts  done 
by  the  commissioner  in  pursuance  of  his  commission. 

1  Op.,  81,  Lee,  1797. 

644 


DHAP.  IV.]  PROTECTED    FROM    PROCESS.  [§  93. 

rf  11  minister  violate  the  laws  of  the  Government  to  which  he  18 
Accredited,  or  otherwise  oileud  its  sovereignty,  there  is  no  remedy 
except  in  the  manner  and  form  prescribed  by  international  law. 

7  Op.,  367,  Cuahing,  1855. 

Any  person  who  executes  process  on  a  foreign  minister  is  to  be  deemed 
m  officer  under  section  26  of  the  act  of  1790  (1  Stat.,  117;  11.  S.,  §  40G4), 
md  in  such  case  scienter  need  not  be  proved,  nor  is  submission  of  the 
jiinister  any  defense. 

U.  S.  V.  Benner,  Baldwin,  234. 

"  The  statutes  of  the  United  States  provide  severe  punishments  for 
ill  such  violation  of  the  diplomatic  immunities  of  the  representatives 
3f  foreign  states,  and  the  courts  of  the  United  States,  acting  in  har- 
uony  with  the  principles  of  public  law,  as  recognized  by  the  Govern- 
ment, have  in  more  than  one  instance  held  that  the  law  does  not  make 
knowledge  an  ingredient  in  an  offense  against  the  diplomatic  iunuuni- 
■ies  of  a  minister,  and  that  it  is  not  necessary  to  supi)ort  an  indictment 
igainst  a  person  who  executes  a  process  against  such  minister,  that 
:hc  defendant  should  know  the  person  arrested  to  be  a  foreign  n)in- 
ster." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  de  Vaugelas,  Dec.  28, 1876.     MSS.  Notes.,  France. 

Ignorance  of  the  diplomatic  immunities  of  a  party  arrested  does  not 
protect  parties  who  illegally  made  such  arrest. 

Mr.  Fisli.Sec.  of  State,  to  Mr.  Waslibnrne,  Jan.  11,  1877.     MSS.  lust.,  France. 

U.  S.  V.  Benner,  supra. 
As  to  privileges  of  French  consuls  under  treaty,  see  ibid. 

The  service  of  legal  process  upon  a  foreign  minister  is  an  infringe- 
ment of  his  privilege  and  an  abuse  of  the  process  of  the  court. 

Mr.  Blaine,  Sec.  of  State,   to  Governor  of  Rhode  Island,  Oct.  31,  1881.     MSS. 
Dom.  Let. 

Service  of  writs  on  foreign  ministers  is  in  contravention  of  section 
4064  Eevised  Statutes,  and  may  be  a  matter  for  prosecution  in  fed- 
eral courts. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Brewster,  June  28,  1883.     MSS.  Doiu. 
Let.     (See  9  Op.,  Atty.  Gen.,  7.)     Same  to  same,  June  21,  1883. 

Eevised  Statutes,  sections  4063  and  4064,  do  not  impose  a  penalty  on 
judges  hearing  suits  in  which  foreign  ministers  are  defendants,  but 
simply  on  parties  suing  out  or  enforcing  writs  of  execution  against  such 
ministers. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Preston,  July  10,  1,-83.     MSS.  Notes. 

Hayti. 
As  to  immunity  of  foreign  ministers  from   process  for   debt,  see  Mr.   F.    W. 

Seward,  Asst.  Sec.  of  State,  to  Mr.  Devens,  Aug.  22,  1878.     MSS.  Dom.  Let. 

645 


§  93a.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

General  Henderson,  Minister  from  Texas  to  France  (before  tlie  an- 
nexation of  Texas),  was  arrested  in  New  York,  on  his  return  from 
Prance  to  Texas,  on  an  alleged  debt.  The  court  discharged  him  fx'om 
arrest,  and  held  that  the  want  in  his  case  of  a  passport  made  no  differ- 
ence in  the  case. 

Holbrook  v.  Henderson,  4  Sandf.,  619. 

(3)  Exemption  from  criminai.  prosecution. 

§  93a. 

The  prevalent  view,  so  far  as  concerns  civil  process,  is  that  the  doc- 
trine of  extraterritoriality  does  not  apply  (1)  in  cases  where,  from  the 
nature  of  the  case,  no  other  jurisdiction  exists  than  that  in  which  the 
embassy  hoids  its  seat,  e.  g.,  suits  for  real  estate  ;  {'2)  in  cases  where  the 
ambassador  sues,  and  the  claim  against  him  is  set  up  by  way  of  set- 
off 5  (3)  in  cases  in  which  the  ambassador  voluntarily  submits  to  a  hear- 
ing before  arbitrators,  in  the  same  sense  in  which  a  sovereign  may  agree 
to  an  arbitration  ;  (4)  in  cases  where  the  ambassador,  with  the  consent 
of  his  Government,  submits  himself  to  the  jurisdiction  ;  (5)  in  cases 
where  the  ambassador  is  a  citizen  or  subject  of  the  state  to  which  he  is 
accredited,  or  when  he  is  at  the  time  in  the  service  of  such  state ;  (6) 
in  cases  where  the  ambassador  engages  in  trade,  and  the  suit  is  brought 
in  respect  to  such  trading  engagements.  This  extraterritoriality  ordi- 
narily protects  the  diploujatic  agent  also  from  prosecutions  for  crime; 
unless  the  crime  be  of  a  character  so  outrageous  and  couspicnous  as  to 
forfeit  his  privileges,  or  disturb  the  peace  of  the  country  of  his  resi- 
dence. But  even  in  this  case,  the  better  course  is  to  send  him  home  to 
his  own  sovereign,  who  alone  has  jurisdiction  over  him.  The  privilege 
of  extraterritoriality  no  longer  gives  the  ambassador,  as  was  once  sup- 
posed to  be  the  case,  the  power  to  execute  penal  discipline  upon  his 
subordinates. 

Whart.  Com.  Am.  Law.,  $  167. 

If  a  minister's  crimes  be  such  as  to  render  him  amenable  to  local 
jurisdiction,  it  must  be  because  they  forfeit  the  privileges  annexed  to 
his  character;  and  the  minister,  by  violating  the  conditions  under  which 
he  was  received  as  the  representative  of  a  foreign  sovereign,  has  sur- 
rendered the  immunities  granted  on  those  conditions  ;  or,  according  to 
the  true  meaning  of  the  original  assent,  has  ceased  to  be  entitled  to 
them. 

Exchange  v.  McFaddon,  7  Cranch,  116. 

"  Ministers  of  the  highest  grade,  in  cases  of  great  enormity,  are  sub- 
ject to  the  penalty  of  the  law,  according  to  the  law  of  nations." 
Mr.  Monroe,  Sec.  of  State,  to  Mr.  Harris,  Dec.  10,  1815. 

Early  in  1816,  Kosloff,  the  Russian  consul  at  Philadelphia,  was  arrested 
in  Philadelphia  on  the  charge  of  having  ravished  a  girl  of  twelve  years, 
who  was  a  servant  in  his  family.  He  was  taken  before  a  justice  of  the 
X)eace  in  Philadelphia  (who  by  law  was  not  empowered  to  take  bail  in 
cases  of  that  class),  who  (a  prima  facie  case  being  shown)  committed 
Kosloff  to  prison  to  wait  trial.     A  writ  of  habeas  corpus  being  taken  out 

646 


CHAP.  IV.]  PROTECTED  FROM  PR0CES8.  [^  93a. 

iiixl  day  belbic  tlie  chief  Justice  of  Pcinisvlvaiiia,  KoslolT  was  IikiiihI 
over  (bail  beiiiji;- taken)  to  answer  to  the  next  <-(Hirl.  At  this  court  an  in- 
.lictmenttVn-  lape  was  (bund  against  liini  by  the  ^land  Jury.  The  district 
;iitorney  of  the  United  States  for  lMiiiadeli>liia  was  instiiictcd  b,\  the 
Piesident  to  ^ive  his  assistance  as  counsel  to  ^Ir.  Kosh)ir.  whicii  was 
(lone,  though  the  defense  was  nianaj^vd  by  other  counsel.  A  motion 
\\  as  then  made  by  tlie  defense  to  dismiss  the  indictment  on  the  {ground 
i  hat  the  case  was  exclusively  coj^uizable  by  Federal  courts.  This  motion 
\\  as  granted  lor  the  reason  given.  (Com.  v.  Koslofi",  5.  S.  an<l  It.,  545.) 
K*ai)e  not  being  then  an  offense  by  a  statute  of  the  United  States,  the 
Attorney-General  of  the  United  States  gave  an  opinion  that  the  Fed- 
<  r;d  courts  had  not  cognizance  of  tiie  ofiense.  The  Kussian  minister  at 
Washington  urged  with  great  earnestness  a  trial  on  the  merits.  This, 
however,  was  impracticable  under  the  circumstances.  The  Russian 
Government  took  umbrage  at  what  it  considered  a  failure  of  justice, 
and  refused  to  receive  Mr.  Harris,  United  States  charge,  until  a  due 
explanation  was  made.  The  above  ex})lanation  was  made  in  reply  by 
Mr.  Monroe,  Secretary  of  State,  in  a  letter  to  Mr.  Harris,  July  31,  181G, 
quoted  infra. 

See  further,  same  to  same,  Sept.  30,  181(5 ;  Mr.  Monroe  to  Mr.  J.  Q.  Adauis,  Nov. 
2,  1816.     MSS.  Inst.,  Ministers. 

Mr.  Daschkoff  subsequently  informed  the  Government  that  he  had 
''terminated  his  mission  to  the  United  States  by  the  order  of  his  sov- 
ereign," on  this  account,  which  was  regarded  as  the  more  remaikable 
fiom  the  fact  that  "the  Government  of  Eussia  had  admitted  that  a 
consul  deserves  no  protection  in  such  a  case  from  the  law^  of  nations." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Hughes,  Nov.  2,  1816 ;  to  Mr.  Piukney,  Nov.  16, 
1816.  MSS.  lust..  Ministers.  See  further  Mr.  Monroe  to  Mr.  Da.sehkoflF, 
Aug.  16,  1816,  Sept.  12,  1816;  to  Couut  de  Nesselrode,  Oct.  2:3,  1816.  MSS. 
Notes,  For.  Leg. 

"  How  far  ambassadors  and  public  ministers  themselves  are  exepipted 
by  the  law  of  nations  from  punishn)ent  for  crimes  of  this  nature  by  the 
laws  of  the  country  in  which  they  reside  may  perhaps  with  some  be 
doubtful;  but  this  is  foreign  to  the  present  puri)Ose.  Consuls,  it  is 
believed,  are  not  exempt  from  such  punishment.  This  opinion  is  sup- 
posed to  be  warri^)nttd  by  the  weight  of  authority  in  those  commenta- 
tors on  public  law  whose  opinions  are  alike  resi)ected  in  Europe  and 
the  United  States,  and  by  the  general  adniission  and  practice  of  Euro- 
pean nations.  Consuls  are  undoubtedly  entitled  to  great  resi)ect,  as 
bearing  the  commissions  of  their  sovereign,  but  their  duties  are  of  a 
commercial  nature,  and  their  public  character  subaltern;  neither  their 
persons  nor  their  domiciles  have  heretofore  beeji  i>roteeted.  as  have 
those  of  ambassadors  and  other  {)ublic  ministers. 

"Instances  are  not  wanting  in  which  some  of  them  have  been  brought 
within  the  jurisdiction  of  our  courts.  It  is  not  known  that  it  has  ever 
yet  laid  the  foundation  of  any  charge  of  a  breach  of  privilege  or  infringe- 
ment of  public  law  on  the  part  of  any  of  the  Governments  of  Europe, 
whose  commissions  these  consuls  may  resitectively  have  borne.  For  a 
recapitulation  of  some  of  these  instances,  I  beg  leave  to  refer  you  to 

647 


§  936.1  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

the  report  made  to  me  by  the  attorney  of  the  United  States  at  PhiU- 
delpbia.  I  also  beg  leave  to  refer  you,  with  the  like  view,  as  well  as 
for  au  elucidation  of  other  topics  connected  with  this  dispatch,  to  the 
opinion  at  large  of  that  very  respectable  magistrate,  the  chief  justice 
of  Pennsylvania,  contained  in  the  folio  document,  and  numbered  20. 
One  of  the  instances  set  forth  in  the  attorney's  report,  and  known  to 
this  Department  to  be  authentic,  deserves  to  be  particularly  adverted 
to.  It  was  the  case,  not  of  a  consul,  but  of  a  commissioner  of  His 
Britannic  Majesty,  under  the  sixth  article  of  the  treaty  of  amity,  com- 
merce, and  navigation  between  the  United  States  and  Great  Britain, 
made  at  London  in  the  year  1794. 

"A  British  subject,  clothed  with  a  commission  from  his  King,  under 
this  article  (whereby,  as  it  is  conceived,  he  stood  upon  a  footing  certainly 
not  inferior  in  dignity  to  a  consul),was  subjected  to  a  i^rocess  issuing  from 
a  court  in  Philadelphia,  and  took  his  trial  before  a  jury  on  the  charge 
brought  against  him.  The  Government  of  England  did  not  complain 
of  the  proceeding." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Harris,  July  31,  181G.     MSS.  Inst.,  Ministers. 

If  the  crime  committed  affect  individuals  only,  the  Government  of 
the  country  is  to  demand  his  recall;  and  if  his  Government  refuse  to 
recall  him,  he  may  be  expelled  by  force  or  brought  to  trial,  as  no  longer 
entitled  to  the  immunities  of  a  minister.  If  the  crime  affects  the  public 
safety  of  the  country,  its  Government  may,  for  urgent  cause,  either 
seize  and  hold  his  person  till  the  danger  be  passed,  or  expel  him  from 
the  country  by  force;  for  the  safety  of  the  state,  which  is  superior  to 
other  considerations,  is  not  to  be  periled  by  overstrained  regard  for  the 
privileges  of  an  ambassador. 

7  Op.,  367,  Cashing,  1855. 

If  the  offense  be  grave,  but  not  such  as  to  compromise  the  public  safety, 
the  course  is  to  demand  the  recall  of  the  minister,  and  meanwhile  to  refuse 
or  not  all  further  intercourse  with  him,  according  to  the  circumstances. 
For  implication  in  attempts  to  enlist  troops  in  the  United  States,  it  was 
held  that  the  President  might  send  his  passports  to  the  British  minister, 
with  intimation  to  leave  the  countr^^  without  delay ;  or,  in  his  discre- 
tion, adopt  the  milder  course,  as  President  Washington  did  in  the  case 
of  M.  Genet,  of  affording  the  minister  opportunity  for  explanation 
through  the  Secretary  of  State ;  and  then,  if  his  explanation  should  be 
unsatisfactory,  to  demand  his  recall. 

Ibid. 

See  further  as  to  dismissal  in  latter  case,  supra,  $  84,  infra,  $  395. 

(4)  What  attack  on  a  Minister  is  an  international  offense. 

§  93ft. 

A  riot  before  the  house  of  a  foreign  consul  by  a  tumultuous  assembly 
requiring  him  to  give  up  certain  persons  supposed  to  be  resident  with 
648 


CHAP.  IT,]  PROTECTED    FROM    INDIGNITY.  [§  94. 

bim,  and  iusultiug  liiiii  witlj  improper  hiiiguage,  is  not  :iii  ofleiiscw  iilnri 
tlieact  of  the  30th  of  April,  1790,  which  i>re!scril)es  th«^  pmiishim-iit  '-for 
any  infraction  of  the  hiw  of  nations,  l)yoflering  viokMice  to  tlie  person 
of  an  ambassador  or  other  public  mininter.^^ 
1  Op.,  41,  Bradford,  IT'J-l. 

The  immunities  of  the  domicil  do  not  extend  to  an  annexed  garden. 
lOp.,  141,  Liucolu,  1804. 

An  indictment  charging  one  with  offering  violence  to  tlie  person  of  a 
public  minister,  contrary  to  the  law  of  nations  and  the  act  of  Congress 
in  such  case  provided,  is  not  a  case  "affecting  ambassadors,  other 
public  ministers,  and  consuls,"  within  section  2,  Article  III,  of  the  Con- 
stitution. 

U.  S.  V.  Ortega,  11  Wheat.,  467. 

The  clause  in  the  Constitution  (second  section,  third  article)  that  the 
judicial  power  of  the  United  States  extends  to  all  cases  affecting  am- 
bassadors, other  public  ministers,  and  consuls,  confers  a  j)ublic,  not  a 
personal,  privilege,  and  is  not  waived  by  an  omission  to  plead  it  in  a 
State  court  of  the  first  instance. 
Davis  V.  Packard,  7  Pet.,  276. 

The  immunity  of  diplomatic  representatives  abroad  is  sanctioned  by 
public  law. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Partridge,  Dec.  31,  1869.     MSS.  Inst.,  Veuez. 

XVIII.  AND  FROM  PERSONAL  INDIGNITY. 

§  94. 

By  the  municipal  law,  as  well  as  the  law  of  nations,  a  foreign  minis- 
ter is  peculiarly  protected  not  only  from  violence,  but  also  from  insult, 
such  as  a  libel. 

1  Op.,  52,  Bradford,  1794.     See  7  John  Adams's  Works,  421,  495 ;  10  ibid.,  [\S. 

An  ambassador  or  other  representative  of  one  foreign  nation  residing 
in  another  is  entitled  to  be  treated  with  respect  so  long  as  he  is  per- 
mitted to  continue  in  the  country  to  which  he  is  sent,  and  esi)ecially 
ought  not  to  be  libeled  by  any  of  the  citizens.  If  lie  commits  any 
offense,  it  belongs,  in  our  country,  to  the  President  to  take  notice  of  it, 
and  not  to  any  individual  citizen.  The  President  nia\  dismiss  liini  i.v 
desire  his  recall,  or  complain  to  his  sovereign  and  require  satisfacti«)n. 
1  Op.,  71,  Lee,  1797. 

An  affront  to  an  ambassador  is  just  cause  for  national  «lispleasure, 
and,  if  offered  by  an  individual  citizen,  satisfaction  is  deman<lablc  of 
his  nation.  It  is  not  usual  for  nations  to  take  serious  notice  of  pub- 
lications in  one  nation  containing  injurious  and  defamatory  observa- 

649 


§  04.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

tions  upon  tlie  other,  but  it  is  usual  to  complaiu  of  insults  to  their  em 
bassadors,  and  to  require  the  parties  to  be  brouj^'ht  to  punishment. 
Ibid. 

The  entry  into  a  minister's  garden  by  the  agent  of  the  owner  of  a 
slave,  and  there  seizing  and  carrying  away  to  the  owner  such  slave,  is 
not  such  a  violation  of  the  domicile  of  the  minister  as  constitutes  a  pun- 
ishable offense  under  the  crimes  act  of  1790  (1  Stat.,  118;  E.  S.,  §  4064). 
1  Op.,  141,  Lincoln,  1804. 

For  injuries  done  by  private  persons  to  foreign  ministers,  redress  is 
to  be  had  through  the  regular  judicial  tribunals. 
9  Op.,  7,  Black,  It*;")?. 

An  indictment  under  the  act  of  1790  (1  Stat.,  118 ;  R.  S.,  §  4062)  for 
offering  violence  to  the  iierson  of  a  public  minister  is  not  a  case  "  af- 
fecting ambassadors  or  other  public  ministers  and  consuls,"  within  the 
second  section  of  the  third  article  of  the  Constitution," 

U.  S.  r.  Ortega,  11  Wheat.,  467.     See  in  this  case  note  by  Mr.  Wheaton  on  the 
general  question  of  jurisdiction  over  foreign  ministers. 

The  tearing  down,  in  a  riot  in  the  city  of  Philadelphia,  in  1802,  of  the 
flag  of  the  Si)anish  minister,  "  with  the  most  aggravating  insults,"  was 
held  to  be  cognizable  in  the  State  court  of  Pennsylvania. 

Mr.  Madison,  Sec.  of  State,  to  Governor   McKcan,  May  11,  1802.     MSS.  Dom. 

Let. 
For  an  account  of  the  trial  of  Wni.  Cobbett  for  libel  on  the  Spanish  minister 

Yrujo,  see  3  Life  of  Pickering,  396/;  Wharton's  St.  Tr.',  322. 
As  to  other  proceedings  of  Yrujo,  see  infra,  $  106.     Supra,  §  84. 

The  indignities  alleged  to  have  been  offered  in  1809,  to  Mr.  Jackson, 
British  minister  at  Washington,  are  discussed  in  detail  in  another  sec- 
tion, {ififra,  §107,)  and  it  is  shown  that  the  pretence  of  such  indignities, 
set  up  by  that  ofiicer,  is  not  sustained  in  point  of  fact.  The  circum- 
stances of  Mr.  Jackson's  dismissal  are  noticed.     (Supra,  §  84.) 

"During  Mr.  Gallatin's  mission  at  London,  in  1827,  an  incident  oc- 
curred involving  a  question  of  diplomatic  privileges,  which  led  to  an  ex- 
])osition  of  the  British  views  on  the  rights  of  embassy.  His  coachman 
was  arrested  in  his  stable  on  a  charge  of  assault,  by  a  warrant  from  a 
magistrate.  The  subject  having  been  informally  brought  to  the  notice 
of  the  foreign  oflice,  a  communication  was  addressed  to  the  secretary 
of  the  American  legation  by  the  under  secretary  of  state,  Mr.  Back- 
house, May  18, 1827,  in  which  he  informed  Mr.  Lawrence  of  the  result  of 
a  reference  made  by  order  of  Lord  Dudley,  to  the  law  ofticers  of  the 
Crown.  In  it  it  is  said  that '  the  statute  of  the  7th  Anne,  chap.  16,  has 
been  considered  in  all  but  the  penal  parts  of  it  nothing  more  than  a 
declaration  of  the  law  of  nations  ;  and  it  is  held  that  neither  that  law, 
nor  any  construction  that  can  properly  be  put  uj^on  the  statute,  extends 
TO  protect  tlie  mere  servants  of  ambassadors  from  arrest  upon  criminal 
charges,  although  the  aml)assador  himself,  and  i)robably  those  who  may 
be  named  in  his  mission  are,  by  the  best  opinions,  though  not  by  the 
uniform  practice  of  this  country,  exempt  from  every  sort  of  jn'os- 
ecution,  criminal  and  civil.     His  lordship  will  take  care  that  the  mag- 

650 


[chap.  IV.  PROTECTED    FROM    TAXES    AND    IMP08TH.  [§  95. 

istrates  aie  ai)i)rised,  tliroiigli  the  pr()i)er  chaiiiicl,  of  llu'  disiiitpio- 
batioii  of  His  Majesty's  Govermneiit  of  the  mode  in  wliicli  the  warrant 
was  executed  \u  the  pieseut  instance,  and  are  iuilher  informed  ol'  tlje 
expectation  of  His  Majesty's  Government  that,  whenever  the  servant  of 
a  foreign  minister  is  charged  with  a  misdemeanor,  the  magistrate  shall 
take  proper  measures  for  apprising  the  minister,  either  by  i)ersonal  com- 
munication with  him  or  through  the  foreign  office,  of  the  fact  of  a 
warrant  being  issued,  before  any  attempt  is  made  to  execute  it,  in  order 
thitt  the  minister's  convenience  may  be  consulted  as  to  the  time  and  man- 
ner in  which  such  warrant  shall  be  put  in  execution.' 

"An  official  character  was  given  to  the  preceding  communication  by 
a  note  from  Earl  Dndley,  secretary  of  state  for  foreign  affinrs,  June 
2.  1827,  in  which  he  says  thatit  is  only  necessary  for  him  to  'contiiin  the 
statement  contained  in  thei)rivate  note  of  Mr.  Backhouse,  referred  to  by 
Mr.  Gallatin,  as  to  the  law  and  practice  of  this  conntry  upon  the  (pies- 
tions  of  privilege  arising  out  of  the  arrest  of  Mr.  Gallatin's  coachman, 
and  to  supply  an  omission  in  that  statement,  with  respect  to  the  (|nes- 
tion  of  the  supposed  inviolability  of  the  premises  occui)ied  by  a  foreign 
minister.  He  is  not  aware  of  any  instance,  since  the  abolition  of  sanc- 
tuary in  England,  wiiere  it  has  been  held  that  the  prenjises  occupied  by 
an  ambassador  are  entitled  to  such  a  lu'ivilege  by  the  law  of  nations.' 

"  He  adds  that  courtCvSy  requires  that  their  houses  should  not  be  en- 
tered without  ])erraission  being  first  solicited  in  cases  where  no  urgent 
necessity  presses  for  the  immediate  capture  of  an  offender." 

Lawrence's  Wheaton  (ed.  Ib63),  1006,  1007. 

"  In  the  case  of  all  offenses  against  the  law,  committed  in  this  country, 
no  arrest  can  be  made,  nor  ca-n  any  judicial  proceedings  be  instituted, 
except  upon  complaint  sustained  by  the  oath  of  a  credible  witness. 
The  mere  allegations  in  notes  of  a  diplomatic  representative,  although 
they  may  command  the  entire  confidence  of  the  executive  branch  of  the 
Government,  are  not  such  proof  as  the  law  requires  or  as  the  judicial 
tribunals  of  the  country  can  recognize." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Mantilla,  Sept.  27,  1875.  MSS.  Notes,  Spain. 
As  to  maltreatment  of  Mr.  Washburn,  minister  to  Paraguay,  see  report  of  Sec- 
retary of  the  Navy,  Feb.  11,  1869,  House  Ex.  Doc.  No.  79,  40th  Cong.,  3d 
sess.  See  also  House  Ex.  Doc.  No.  5,  41st  Cong.,  1st  sess. ;  Mis.  Doc.  8,  pt. 
2,  same  sess.  (Memorial  of  Bliss  and  Masterman),  and  report  thereon.  House 
Rep.  No.  65,  41st  Cong.,  2d  sess. 
That  the  Federal  courts  have  no  common-law  jurisdiction  of  libels  on  foreign 
ministers,  but  that  such  libels  may  be  prosecuted  in  State  courts,  see  supra, 
$56. 

XIX.  AND  FROM  TAXES  AND  IMPOSTS. 

§95. 

"All  applications  to  this  Departmentfor  free  entry  of  articles  imported 
for  the  use  of  ministers  and  charges  d'afifiiires,  and  which  they  desire 
shall  be  delivered  free  of  duty,  must  be  made  through  the  Department 
of  State,  accompanied  by  a  bill  of  lading  and  by  a  statement  of  the 
number  of  packages,  and  their  marks  and  numbers,  with  a  general 

651 


§  H5.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

(lesciiptiou  of  their  conteuts,  naming  the  vessel  or  other  vehicle  in 
which  the  same  were  imported,  and  the  person  to  whom  they  wish  the 
delivery  to  be  made.  When  the  request  of  the  minister  or  charge,  with 
the  bill  of  lading  and  statement  aforesaid  shall  have  been  communi- 
cated to  this  Department  by  the  Secretary  of  State,  instructions  will 
be  given  to  the  collector  of  the  customs  to  deliver,  free  of  duty,  such 
packages  as  may  be  found  to  correspond  with  the  bill  of  lading  and  state- 
ment aforesaid." 

Treasury  Regulations  of  1857,  Art.  247,  quoted  in  Mr.  Trescot,  Acting  Sec.  ef 
State,  to  Mr.  van  Limburg,  June  29,  1860.     MSS.  Notes,  Netherlands. 

That  the  practice  has  been  to  permit  ministers  of  the  United  States  when  return- 
ing to  the  United  States  from  abroad  to  bring  in  baggage  and  personal  fur- 
niture duty  free,  see  Mr.  Gallatin  to  Mr.  Clay,  Nov.  23,  1815. 

The  right  of  exemption  from  custom-house  duties  of  articles  required 
for  personal  use  is  restricted  to  the  person  who  is  the  head  of  a  foreign 
mission. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Yano,  Jan.  9,  1874.     MSS.  Notes,  Japan. 

Eesidences  of  foreign  ministers  in  Berlin  not  being  taxed,  there  should 
be  a  similar  exemption  of  taxation  of  residences  of  German  ministers  at 
Washington,  though  the  better  opinion  is  that  such  exemption  is  lim- 
ited to  heads  of  missions. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Stumm,  May  28,  1873.     MSS.  Notes,  Prussia. 

"  The  general  usage  of  nations  is  to  accord  the  franchise  of  immunity 
from  customs  duties  to  all  heads  of  missions,  temporary  or  permanent, 
of  whatever  rank,  and  that  while  in  some  countries,  Spain,  for  instance, 
the  extent  of  the  privilege  is  limited  (although  even  there  very  gener- 
ously bestowed),  it  (the  Department)  can  find  no  case  of  its  denial  to 
any  chief  diplomatic  ofiicer  save  in  Russia." 

Mr.  F.  W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Hoffman,  Aug.  21,1879.  MSS. 
Inst.,  Russia. 

"  There  is  no  law  on  the  statute-book  prescribing  or  regulating  the 
free  entry  of  articles  imported  by  foreign  diplomatic  officers.  That  is 
entirely  a  subject  within  the  discretion  of  the  Secretary  of  the  Treasury, 
and  rests  merely  on  the  ascertained  fact  of  reciprocity." 

Mr.  Brown,  Chief  Clerk,  to  Mr.  Willamov,  June  9, 1880.     MSS.  Notes,  Russia. 

"  In  reply  to  your  letter  of  the  23d  ultimo,  I  have  to  say  that  the  rule 
observed  by  this  Government  with  respect  to  the  taxation  of  property 
owned  by  a  foreign  Government  and  occupied  as  its  legation,  is  to  accord 
reciprocity  in  regard  to  general  taxation  but  not  to  specially  exempt  it 
from  local  assessments,  such  as  water  rent  and  the  like,  unless  it  were 
definitely  understood  that  these  taxes  would  also  be  exempted  by  the 
foreign  Government  ujion  a  piece  of  property  belonging  to  the  United 
States  and  used  for  a  like  purpose  by  our  minister.  Our  diiilomatic 
representatives  either  personally  contract  for  the  premises  occupied  by 
theiu  and  are  granted  a  maximum  allowance  for  rent  for  that  portion 
652 


[chap.  IV.         PROTECTED    FROM    TAXES    A>.D    IMPOSTS.  §  D5. 

of  the  premises  actually  set  apart  for  legation  purposes,  or  else  liiey 
rent  a  piece  of  property  to  be  used  exclusively  for  official  business, 
charging-  therefor  in  their  contingent  quarterly  accounts  as  allowed  by 
the  Department. 

"  When  a  foreign  legation  occupies  rented  property  in  this  country, 
the  owner  of  the  premises  is  not  exempted  from  all  lawful  taxes. 

"It  is  of  course  impracticable  to  do  more  than  state  the  general  and 
equitable  usage  prevailing  in  such  matters.  The  Government  of  the 
United  States  is  not  the  owner  of  real  estate  abroad  except  at  Tangier, 
Africa,  which  is  a  specially  donated  property,  and  the  only  dill'ereiices  to 
be  noted  in  the  way  of  leasing  or  renting  property  from  the  general  rule 
stated  above  are  to  be  found  in  China  and  Japan.  In  those  countries 
contracts  for  legation  premises  are  authorized  by  act  of  Congress." 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  Woolsey,  Apr.  15, 1886.     MSS.  Doiu.  Let, 

'-A  diplomatic  representative  possesses  immunity  from  the  criminal 
and  civil  jurisdiction  of  the  country  of  his  sojourn,  and  cannot  be  sued, 
arrested,  or  punished  by  the  law  of  that  country.  Neither  can  he  waix  e 
his  privilege,  for  it  belongs  to  his  office,  not  to  himself.  It  is  not  to  be 
supposed  that  any  representative  of  his  country  would  intentionally 
avail  himself  of  this  right  to  evade  just  obligations,  incurred  either  by 
himself  or  the  members  of  his  mission. 

"7/",  however,  a  diplomatic  agent  holds,  in  such  foreign  country,  real  or 
personal  property,  aside  from  that  ivhich  pertains  to  him  as  a  minister,  if  is 
subject  to  the  local  laws. 

"It  is  the  custom  of  international  intercourse  that  to  a  diplomatic; 
agent  shall  be  conceded  the  privilege  of  importation  of  effects  for  his 
personal  or  official  use,  or  for  the  use  of  his  immediate  family,  without 
payment  of  duties  thereon.  The  application  of  this  ])rivilege  varies  in 
different  countries,  but  as  a  rule  is  restricted  to  the  head  of  the  mission. 
It  is  the  dutj'  of  the  agent  to  acquaint  himself  with  the  formalities  pre- 
scribed in  such  case  by  the  local  law  or  regulations,  and  to  conform 
therewith.  The  privilege  is  one  of  usage  and  tradition,  rather  than  an 
inherent  right,  and  is  one  which  the  Government  of  the  United  States 
gives  to  the  foreign  representatives  it  receives.  Where  the  agent  lias 
ground  to  believe  that  a  full  measure  of  reciprocal  courtesy  is  limited 
or  denied  to  him  abioad,  he  shouhl  refrain  from  questioning  the  local 
rule  on  the  subject,  but  await  such  instructions  as  the  Department  of 
State  may  give  him  after  receiving  full  information  as  to  the  circum- 
stances. 

"The  diplomatic  i)rivilege  of  importing  goods  for  personal  use  is  not 
accorded  to  a  foreign  secretary  of  legation  in  the  Unitinl  States  or  in  any 
foreign  country,  so  far  as  is  known. 

"  In  most  countries  the  franchise  of  importation  is  accorded  to  a  charg*' 
d'affaires  ad  interim.  Where  the  exception  exists  the  fact  should  not 
be  made  the  occasion  of  remonstrance  or  argument  wi;h  the  local  (Gov- 
ernment without  the  express  directions  of  the  Department  of  Stal<'. 

"  Transit  free  of  customs  dues  is  usually  conceded  by  a  third  state 
through  whose  territories  a  diplomatic  officer  passes  on  his  way  to  or 
from  his  post." 

Printed  Pers.  lust.,  Dip.  Agents,  18H5. 

As  to  status  in  third  country  see  infra,  697. 

653 


§  UG.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

XX.   PIWPERTY  PROTECTED. 

§96. 

A  charge  d'affaires  of  Eussia  had  a  large  party  at  his  house,  and  a 
transpaient  painting  at  his  window,  at  which  a  mob  which  had  collected 
took  offense ;  the  defendant  fired  two  pistols  at  the  window,  his  inten- 
tion being  to  destroy  the  painting  without  doing  injury  to  the  person  of 
the  minister  or  of  any  one.  The  defendant  was  indicted  for  an  assault 
upon  the  charg^  d'affaires  and  for  infracting  the  laws  of  nations  by 
ofiering  violence  to  the  person  of  the  said  minister.  It  was  held  that 
the  law  of  nations  identifies  the  property  of  a  foreign  minister,  attached 
to  his  person  or  in  his  use,  with  his  person.  To  insult  them  is  an  attack 
on  the  minister  and  his  sovereign,  and  it  appears  to  have  been  the 
intention  of  the  act  of  Congress  to  punish  offenses  of  this  kind.  But 
it  was  said  that  to  constitute  such  an  offense  against  a  foreign  minister 
the  defendant  must  have  known  that  the  house  on  which  the  attack 
was  made  was  the  domicile  of  a  minister ;  otherwise  it  is  only  an  offense 
against  the  municipal  laws  of  the  state. 
U.  S.  V.  Hand,  2  Wash.  C.  C,  435. 

The  persons  and  personal  effects  of  foreign  ministers,  of  their  fa- 
milies and  attaches,  are  exempt  from  seizure,  arrest,  or  molestation, 
both  by  the  law  of  nations  and  by  act  of  Congress.  A  hotel-keeper, 
therefore,  cannot  prevent  an  attache  from  removing  his  personal  effects 
from  the  premises  ;  and  any  attempt  to  do  so  would  be  punished  by  the 
courts. 

5  Op.,  69,  Toucey,  1849. 

It  is  not  within  the  consti  tutional  power  of  the  President  of  the 
United  States  to  deliver  over  to  the  minister  of  the  Netherlands  cer- 
tain jewels,  detained  in  the  custom-house  of  IS'ew  York,  which  are 
shown  to  have  been  stolen  from  the  Princess  of  Orange,  on  whose 
behalf  the  minister  of  the  Netherlands  makes  claim. 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Huygena,  Aug.  o,  lp31.     MSS.  Notes,  For. 
Leg.     See  further,  same  to  same.  Sept.  6,  1«31. 

If,  however,  the  question  comes  up  in  the  way  of  libel  or  other  pro- 
cedure in  the  Federal  courts,  the  President  will  direct  such  action  as 
will  best  conduce  to  the  delivery  of  the  jewels  to  their  rightful  owners. 
Same  to  same,  Jan.  13,  1632  ;  ibid. 

A  municipal  law,  giving  a  landlord  a  "real  right"  {droit  reSl)  over 
personal  property  belonging  to  the  diplomatic  agent  of  a  foreign  sov- 
ereign, entitling  the  creditor  to  seize  such  goods  of  such  diplomatic 
agent  in  his  own  house,  does  not  abrogate  the  law  of  nations  so  far  as 
it  gives  inviolability  to  such  house. 

Mr.  Le-gar^,  Sec.  of  State,  to  Mr.  Wheaton,  June  9,  1843.     MSS.  Inst.,  Prussia, 
654 


CHAP.  IV.J  FREE    TRANSIT    AND    COMxMUNICATION.  [§  97. 

"  Immunity  from  local  jurisdictiou  extends  to  the  diploniatii;  .i^a-ut's 
dwelling-bouse  and  goods,  and  the  archives  of  the  legation.  These 
cannot  be  entered  and  searched,  or  detained  under  process  of  local  law, 
or  by  the  local  authorities." 

Printed  Pers.  Inst.,  Dip.  Agents,  1885. 

XXI.   FREE  TRANSIT  AND  COMMUNICATION  WITH,  SECURED. 

§  97. 

A  diplomatic  agent,  traveling  on  his  way  to  the  country  to  wiiich  he 
is  accredited,  through  a  third  country,  i)ursuing  for  this  purpose  a  nat- 
ural and  1)1  ((per  route,  is  entitled  to  the  same  privilege  as  when  travel- 
ing through  the  country  to  which  he  is  ac(;redited.  It  may  be  that 
such  country  is  in  a  state  of  war  with  the  third  power.  This  does  not 
destroy  his  right  of  transit;  but  if  a  convenient  route  is  i)ointed  out 
to  him  which  will  not  embarrass  an  occuj)ying  army,  he  must  take  this 
route,  and  cannot  be  i^ermitted  to  insist  on  carving  out  a  route  of  his 
own. 

Whart.  Com.  Aui.Law,  $  l(i8. 

The  line  of  transit  may  be  prescribed  by  the  nation  through  whose 
territory  the  minister  may  pass  at  its  option. 

Field's  Code  Int.  Law,  \S  1:36.     See  2  Phil.  Int.  Law,  ld6-189. 

"  I  heartily  reprobate  the  outrage  on  the  British  Government  in  vio- 
lating (by  a  privateer)  the  seals  of  its  accredited  minister  to  the  United 
States,  and  am  desirous  of  taking  such  notice  of  it  as  the  respect  we 
owe,  not  only  to  the  Government  of  Great  JJritaiii  but  to  ourselves, 
demand  ;  1  pray  you,  therefore,  to  refer  the  business  to  the  attorney  of 
the  District,  in  the  absence  of  the  Attorney-General,  with  instructions 
to  prosecute  the  persons  he  may  find  guilty  of  any  breach  of  the  law 
of  nations  or  the  land." 

Mr.  J.  Adams,  President,  to  Mr.  Pickering,  Sec.  of  State,  July  20,  179'.t ;  8  John 
Adanjs'  Works,  668.     See  ibid,  658. 

A  belligerent  has  no  right  to  stop  the  i>assage  of  a  minister  from  a 
neutral  state  to  the  other  belligerent,  unless  the  mission  of  such  minis- 
ter be  one  hostile  to  the  first  belligerent. 

Mr.  J.  Q.  AilaniH,  Sec.  of  State,  to  Mr.  Brown,  Dec.  2:5,  182:5.     MSS.  lust.,  Minis- 
ters. 

"  Some  looseness  of  practice  has  crept  in,  with  reference  to  passports 
of  this  kind  (to  bearers  of  dispatches),  of  an  ininrious  tendency.  .Orig- 
inally given  to  those  actually  charge<l  with  dispatches,  they  have  been 
retained  for  ordinary  use  after  the  dispatches  have  been  delivered  at 
their  destination.  This  circumstance  has  sometimes  given  an  unreal 
character  to  these  passjjorts,  which  tends  to  impair  their  value  in  the 
hands  of  those  entitled  to  them,  besides  being  obje(;tinnable  in  othei- 
respects." 

Mr.  Everetr,  Sec.  of  State,  to  Mr.  Maun,  Dec.  i:?,  1852.     MSS.  Doui.  Let. 

655 


§  97.]  DIPLOMATIC    AGENTS  [CHAP.  IV. 

"  With  reference  to  the  permission  given  to  the  foreign  representa- 
tives to  correspond  with  their  consuls  in  the  ports  of  the  insurgent 
states  h\  means  of  vessels-of-war  entering  their  ports,  i  have  to  remark 
that  circumstances  have  come  to  the  knowledge  of  this  Department 
which  render  it  advisable  that  this  permission  shall  hereafter  be  re 
stricted  to  the  correspondence  of  the  consuls  of  those  powers  only  who, 
by  the  legulations  of  their  respective  Governments,  are  not  allowed  to 
engage  in  commerce.  I  will  consequently  thank  you  to  request  the 
commander  of  any  British  vessel,  who  may  visit  the  ports  adverted  to, 
to  abstain  from  carrying  letters  for  consuls  who  may  be  engaged  in 
trade." 

Mr.  F.  W.  Seward,  Acting  Sec.  of  State,  to  Ivord  Lyons,  Feb.  6,  1862.    MSS. 
Notes,  Gr.  Brit.;  Dip.  Corr.,  1862. 

The  French  Government,  while  conceding,  in  1854,  to  Mr.  Soul6, 
United  States  minister  to  Sj)ain,  the  right  to  pursue  the  direct  route 
through  France  to  Spain,  declined  to  permit  him,  in  consequence  of  his 
political  antecedents,  to  make,  on  his  way,  a  stay,  "s^jour,"  in  Paris. 

Calvo  droit  int.,  3d  ed.,  vol.  1,  60o. 

In  Senate  Executive  Document  No.  1,  Thirty -third  Congress,  second 
session,  is  printed  the  correspondence  between  the  United  States  min 
ister  at  Paris,  Mr.  Mason,  and  Mr.  Drouyn  de  L'Huys,  the  French  min- 
ister of  foreign  affairs,  relative  to  the  refusal  of  the  French  Govern- 
ment to  allow  Mr.  Soule,  the  United  States  minister  to  Spain,  to  enter 
France.     The  circumstances  are  thus  stated  by  Mr.  Lawrence: 

"  A  question  arose  in  1854  between  the  United  States  and  France  as 
to  the  immunities  of  a  minister  ])assing  through  the  territories  of  a  third 
power,  in  Ihe  case  of  Mr.  Soul(5,  minister  at  Madrid,  who  was  stopped 
at  Calais  in  October  of  that  year  on  his  return  to  his  post  from  which  he 
had  been  temporarily  absent.  The  views  of  the  French  Government 
are  given  in  a  note  from  the  minister  of  loreign  aflairs  to  the  American 
minister  in  Paris  with  regard  to  the  privilege  of  transit,  which  was  not 
denied,  as  well  as  respecting  the  position  in  relation  to  that  country 
which  the  envoy  to  Spain  held,  he  being  a  native-born  subject  of  France, 
and  a  naturalized  citizen  of  the  United  States.  While  Mr.  Soul^'s 
quality  of  foreigner,  deduced  from  hisexpatriation,  is  recognized  as  to  all 
other  matters,  and  no  exception  taken  to  his  title  to  the  Spanish  mis- 
sion, ]\Ir.  Drouyn  de  L'Huys  refers  to  the  rule  of  the  law  of  nations 
w^hich,  he  assumes,  would  have  required  a  special  agreement  to  have 
enabled  him  to  represent,  in  his  native  land,  the  country  of  his  adoption. 
'  You  see,  sir,'  says  he,  '  that  the  Government  of  the  Emperor  has  not 
wi«hed,  as  you  appear  to  think,  to  prevent  an  envoy  of  the  United 
States  crossing  the  French  territory  to  go  to  his  post  to  acquit  himself 
of  the  commission  with  which  he  was  charged  by  his  Government ;  but 
between  this  simple  passage  and  the  sojourn  of  a  foreigner  whose  ante- 
cedents have  awakened,  I  regret  to  say,  the  attention  of  the  authorities 
invested  with  the  duty  of  securing  tiie  public  order  of  the  country, 
there  exists  a  difference,  which  the  minister  of  the  interior  had  to  ap- 
preciate. If  Mr.  Soul6  was  going  immediately  and  direct  to  Madrid, 
the  route  of  France  was  open  to  hun  ;  if  he  was  about  coming  to  Paris 
to  sojourn  there,  that  privilege  was  not  accorded  to  him.     It  was,there- 

656 


C'TiAli.  iV.]  FREE' TRANSIT    AND    COMMUNICATION.  [§  ^"7- 

fore,  iicci'srsiiry  to  consult  him  as  to  liis  intentions,  ami  it  was  he  who 
difl  not  j:ive  the  time  for  doinj?  this. 

"  '  Our  laws  are  ])recise  on  the  subject  of  foreijiners.  The  minister  of 
the  interior  causes  the  rij^orous  dispositions  of  them  to  be  executed 
when  the  necessity  for  it  is  demonstrated  to  hiu),  and  he  then  uses  a 
discretionary  powder  which  the  Government  of  the  Emperor  has  never 
allowed  to  be  discussed.  The  quality  of  foreigners  placed  Mr.  Soul<i 
under  the  operation  of  the  measure  which  has  been  applied  to  him. 
You  will  admit,  sir,  that  in  doings  what  we  have  done  the  Government 
of  the  United  States,  with  which  His  Imperial  Majesty's  Government 
heartily  desire  to  maintain  relationsof  friendship  and  esteem,  has  in  no- 
wise been  attacked  in  the  jierson  of  one  of  its  rei)reseutatives.  The 
minister  of  the  United  States  is  free,  I  repeat,  to  cross  France.  Mr. 
Soule,  w^ho  has  no  mission  to  fulfill  near  the  Emperor,  and  who,  con- 
formably to  a  doctrine  consecrated  by  the  law  of  nations,  would  have 
need,  in  consequence  of  his  origin,  of  a  special  agreement  to  rep- 
resent, in  the  country  of  his  birth,  the  country  of  his  adoption.  Mr. 
Soule,  a  i)rivate  individual,  comes  within  the  operation  of  the  law  com- 
mon to  all  ])ersons,  which  has  been  ajjplied  to  him,  and  cannot  i)retend 
to  any  privilege.'  Mr.  Drouyn  de  L'Huys  to  Mr.  Mason,  Nov.  1,  1854, 
Senate  Doc.  !No.  1,  33d  Cong.,  2d  sess." 

Lawrence's  Wheatou  (ed.  1863),  422. 

A  i^erson  coming  into  the  United  States  as  the  diplomatic  representa- 
tive of  a  foreign  state,  with  credentials  from  governing  powers  not  rec- 
ognized by  this  Government,  is  accorded  diplomatic  privileges  merely 
of  transit,  and  this  of  courtesy,  not  of  right,  and  such  privileges  may  be 
withdrawn  whenever  there  shall  be  cause  to  believe  that  he  is  engaged 
in,  or  contemplates,  any  act  not  consonant  with  the  laws,  peace,  and 
public  honor  of  the  United  States. 

8  Op.,  471,  Gushing,  1855. 

Such  a  person,  being  charged  with  unlawful  recruiting,  was  saved 
from  prosecution  on  condition  of  not  becohiing  chargeable  with  any 
further  offense  and  of  departing  from  the  country  within  a  reasonable 
time. 

8  Op.,  47:?,  Gushing,  1855. 

"  The  right  to  send  dispatches  of  a  minister  secured  by  the  law  of 
nations  certainly  involves  the  right  to  designate  the  messenger  and  the 
inviolability  of  his  person  when  executing  the  commission.  But  when 
a  country  is  in  a  revolutionary  state  this  absolute  right  ought  to  be  exer- 
cised with  due  regard  to  the  safety  of  the  state  where  the  minister 
resides,  and  temporary  inconveniences  which  do  not  go  to  the  defeat  of 
the  right  itself  may  well  be  submitted  to  in  such  a  time  without  a  com- 
promise of  the  dignity  or  honor  of  a  just  and  friendly  nation." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Burton,  May  29,  1861.     MSS.  lust.,  Colombia. 
That  consuls  are  uot  entitled  to  use  their  official  agencies  fur  correspondence 
for  the  carrying  of  commuuications  to  au  enemy  of  the  place  of  their  resi- 
dence, see  Mr.  Seward,  Sec.  of  State,  to  Mr.   Adame,  Oct.  2-2,  1^61.  infra, 
^  119. 

S.  Mis.  162— VOL.  I VJ  ^^" 


§97.]  DIPLOMATIC -AGENTS.  [ciIAr.  IV. 

A  bag  i»m]K>rtiiig-  to  contain  dispatches  of  a  foreiiiii  Go\eininont, 
and  sealed  and  authenticated  by  a  consul  of  such  (rovernment,  is  re- 
garded as  invested  with  the  seal  of  such  Government,  and  is  not  open 
to  examination  by  the  authorities  of  the  country  to  which  the  consul  is 
accredited. 

Mr.  Seward,  Sec.  of  State,  to  Lord  Lyons,  Apr.  5,  1862.    MSS.  Notes,  Gr.  Brit. 

"On  general  principles,  however,  a  Government  may  be  said  to  have 
a  clear  right  to  send  its  communications  to  its  diplomatic  agents  in  for- 
eign countries,  and  its  legation  in  one  country  to  those  in  another  by 
means  of  couriers,  which  communications  should  be  inviolable  by  the 
authorities  of  the  country  through  which  they  may  pass.  If  the  courier 
should  be,  as  he  ought  to  be,  x^rovided  with  a  passport  attesting  his  offi- 
cial character,  and  the  dispatches  of  which  he  is  the  bearer  are  in  his 
luggage,  his  affirmation  to  that  eiiect  ought,  it  seems  to  me,  to  exempt 
the  latter  from  search,  unless  its  bulk  or  otlier  circumstances  afford  rea- 
sonable ground  for  suspicion  that  the  courier  has  abused  his  official 
position  for  the  purpose  of  smuggling. 

"  Formerly  it  was  the  practice  of  this  Department,  and  of  the  lega- 
tions of  the  United  States  abroad,  to  issue  courier  passports  for  the 
mere  convenience  of  individuals,  when  either  there  were  really  no  dis- 
patches to  send,  or,  if  there  were,  they  might  as  well  have  gone  by  post. 
The  abuse  to  which  this  practice  led,  and  the  consequent  disrepute  into 
which  it  brought  the  Government  in  Europe,  compelled  its  discontinu- 
ance many  years  since.  The  authorities  of  that  quarter  may  probably 
be  induced  to  withhold  perhaps  the  customary  courtesies  from  couriers 
of  the  United  States  from  a  recollection  of  their  former  excessive  num- 
bers. If,  however,  it  should  be  understood  that  persons  are  not  now 
employed  in  that  capacity  except  upon  occasions  similar  to  those  when 
they  are  employed  by  other  Governments,  we  would  have  a  right  to 
expect  for  our  couriers  the  same  immunities  which  are  accorded  to  those 
of  any  other  Government." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  June  21,  1862.     MSS.  Inst.,  France. 

The  United  States  Government  will  regard  the  detention  by  one  bel- 
ligerent of  its  minister  to  the  other  belligerent  as  a  grave  violation  of 
international  law. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Webb,  Sept.  23,  1866.     MSS.  Inst.,  Brazil. 

Free  transit  to  a  public  minister  may  be  demanded  through  a  block- 
ading squadron. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Webb,  Aug.  17,  1868.     MSS.  Inst.,  Brazil. 

Safe  conducts  in  such  cases  are  granted  by  the  law  of  nations. 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Kirk,  June  17,  1869.     MSS.  Inst.,  Arg.  Eep. 

"  The  question  which  arose  between  General  Hovey  and  the  minister 
for  foreign  affairs  of  Peru,  relative  to  the  right  of  that  Government 

658 


niTAt\  IV.]  FREE    TRANSIT    AND    COMMUNICATION.  1^97. 

to  obstruct  the  departure  of  Colouel  Farraud,  who  liad  bi en  iippointcd 
a;  bearer  of  dispatches  by  the  geueral,  seems  to  be  of  too  luiich  {general 
importance  to  be  left  unnoticed  by  this  Department.  It  is  of  no  moment 
in  the  particular  case,  as  the  Peruvian  Government  ultimately  connivt'tl 
at  Colonel  Farrand's  departure. 

"The  occasion  for  the  colonel's  employment  in  the  character  adverted 
to  was  the  conclusion  of  two  treaties  between  the  United  States  and 
Peru,  which  were  signed  on  the  (Uh  and  lUth  of  last  month.  (Jeneral 
Hovey's  instructions  recognized  his  right  to  make  such  an  api)oiutment 
in  such  a  contingency.  The  appointment  was  made  accordingly  on  the 
12th  of  September,  and  Colonel  Farrand's  i)assport  in  his  ofli«Mal  char 
acter  issued  to  him  on  that  day  without  any  information  to  Cieneral 
Hovey  that  any  branch  of  the  Peruvian  Government  or  any  person 
objected  to  the  colonel's  discharging  the  duties  of  his  trust.  It  seems, 
however,  that  subsequently,  but  before  the  colonel  could  start  on  his 
errand,  a  person  claiming  to  be  a  creditor  of  his  sued  out  judicial  process 
forbidding  him  to  leave  Peru.  General  Hovey  promptly  complained  of 
this  proceeding  as  contrary  to  international  law  relative  to  the  immuni- 
ties of  couriers,  as  set  forth  in  Wheaton's  treatise  on  that  subject. 
The  minister,  in  his  reply,  while  acknowledging  the  authority  of 
Wheaton,  endeavors  to  restrict  the  privilege  of  couriers  as  there  declared 
to  those  appointed  by  a  Government  to  its  legations  abroad,  ami  en- 
larges upon  the  inconveniences  which  the  more  extensive  enjoyment  of 
such  immunities  would  lead  to.  It  is  true  that  no  abuse  of  the  privilege 
in  this  case  is  alleged,  but  its  existence  is  impliedly,  at  least,  denied. 
This  denial,  however,  has  no  support  from  Wheaton,  or  from  any  other 
writer  on  that  branch  of  public  law.  If  the  Peruvian  minister  supposed 
that  he  had  any  reason  to  hesitate  in  acknowledging  the  unqualifu'd 
character  of  the  rule  laid  down  by  Wheaton,  the  plain  and  uiuMiuivocal 
terms  iu  which  Calvo  speaks  upon  this  point  maybe  enough  to  remove 
any  such  hesitation.  The  work  of  this  author  on  international  law  was 
published  in  Spanish  at  Paris,  in  18()8.  It  is  remarkable  as  embracing 
everything  illustrative  of  the  subject  up  to  the  time  of  its  publication, 
and  its  clearness  and  precision  are  at  least  equal  to  its  fullness.  At 
l)aragraph  240,  on  page  350  of  the  first  volume,  may  be  found  the  words 
of  which  the  following  is  a  translation  : 

" '  The  inviolability  which  public  ministers  enjoy  has  also  been  ex- 
tended to  the  messengers  and  couriers  of  the  embassies  and  to  those 
who  proceed  to  them  with  official  dispatches,  and  as  a  general  rule  to 
all  who  discharge,  as  cases  may  arise,  any  commission  for  those  em- 
bassies.' 

"  This,itseems,shouldbeconclusiveotthequestion.    If  General  Hovey 

had  been  aware  that  Colonel  Farrand  was  justly  liable  to  arrest,  and  had 
willfully  appointed  him  a  bearer  of  dispatches  to  screen  him  therefrom, 
this  would  have  been  suflicient  cause  of  complaint  on  the  part  of  the 
Peruvian  Government,  and  perhaps  of  censure  of  its  minister  by  this 

4>5d 


§  97.]  DIPLOMATIC    AGENTS.  [cHAP.  IV. 

Government.  Even  this  knowledge  on  the  })aitol'  the  general,  however, 
would  not,  it  is  conceived,  have  impaired  the  immunity  of  his  courier 
under  the  public  law.  If  alleged  delinquencies  or  pretended  claims  are 
trumped  up  against  persons  appointed  or  about  to  be  ajipoiuted  couriers 
in  foreign  countries  to  i^revent  them  from  starting,  the  immunity  guar- 
anteed to  them  by  jjublic  law  may  at  any  time  be  annihilated  by  an 
envious  or  malicious  person.  This  is  a  result  to  be  deplored  and  guarded 
against  by  all  Governments,  by  the  Government  of  Peru  as  well  as  by 
the  Government  of  the  United  States." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Brent,  Oct.  19,  1870.     MSS.   Inst.  Peru  ;  For. 
Eel.,  1870. 

"  The  undersigned,  after  a  careful  consideration  of  the  subject,  and 
with  every  disposition  to  acknowledge  the  just  and  necessary  belligerent 
rights  of  the  blockading  force,  cannot  acquiesce  in  the  jiretension  set 
up  on  behalf  of  that  force.  It  is  true  that,  when  such  a  force  invests 
a  fortified  place  with  a  view  to  its  reduction,  one  of  the  means  usually 
relied  upon  for  that  puipose  is  the  interrujition  of  ordinary  communica- 
tion by  messengers  or  by  letters.  This  is  acknowledged  to  be  not  only 
a  belligerent  right,  but  also  one  incident  to  the  actual  sovereignty  over 
the  enemy's  territory  occui>ied  by  the  assailant  adjacent  to  the  block- 
aded place.  Paris,  however,  is  the  capital  of  France.  There  the  diplo- 
matic representatives  of  neutral  states  had  their  official  residence  prior 
to  the  investment.  If  they  think  proper  to  stay  there  while  it  lasts 
they  must  expect  to  put  up  with  the  inconveniences,  necessarily  incident 
to  their  choice.  Among  these,  however,  the  stopping  of  communication 
with  their  Governments  cannot  be  recognized.  The  right  of  embassy 
to  a  belligerent  state  is  one  which  it  is  both  the  duty  and  the  interest 
of  its  enemies  to  acknowledge  and  to  permit  the  exercise  of  in  every 
usual  or  proper  way.  If  this  right  should  be  denied,  or  unduly  cur- 
tailed, wars  might  be  indefinitely  prolonged,  and  general  peace  would 
be  impracticable. 

"  The  privilege  of  embassy  necessarily  carries  with  it  that  of  employ- 
ing messengers  between  the  emba.ssy  and  its  Government.  This  is  a 
privilege  universally  recognized  by  publicists.  There  is  no  exception  or 
reservation  made  for  the  case  of  an  embassy  having  its  abode  in  a  block- 
aded place.  Indeed,  the  denial  of  the  right  of  correspondence  between 
a  diplomatic  agent  in  such  a  place  and  his  Government  seems  tanta- 
mount to  insisting  that  he  cannot  elect  to  be  a  neutral,  but  must  be 
regarded  as  an  adversary  if  he  continues  to  stay  there,  especially  when 
the  legitimacy  of  the  authority  of  those  directing  the  resistance  is  denied 
by  the  other  assailant. 

"  The  opposite  course,  which  it  has  suited  the  convenience  of  some 

neutral  Government  to  adopt,  is  obviously  liable  to  be  construed,  partly, 

at  least,  the  occasion  of  withholding  the  privilege  of  correspondence. 

Should  this  be  a  correct  view  of  the  case,  no  independent  state,  claim- 

660 


CHAP.  IV.]  FREE    TRANSIT    AND    COMMUNICATION.  [^  97. 

ing  to  be  a  free  agent  in  all  things,  could,  in  self-respect,  acquiesce  in  a 
proceeding  actuated  by  such  a  motive.  The  undersigned  does  not  charge 
the  Government  of  the  North  German  Union  with  being  so  actuated, 
but  deems  himself  warranted  in  thus  referring  to  the  point,  as  it  is 
adverted  to  by  the  representative  of  that  Government  both  at  Berlin 
and  before  Paris. 

"The  undersigned  is  consequently  directed  to  claim  that  the  right  of 
corresi)ondence  between  the  representatives  of  neutral  i>owers  at  Paris 
and  their  Governments  is  a  right  sanctioned  by  public  law,  which  can- 
not justly  be  withheld  without  assigning  other  reasons  therefor  than 
those  which  have  hitherto  been  advanced.  The  burden  of  proof  of  the 
sufficiency  of  those  reasons  in  furtherance  of  the  belligerent  rights  of 
the  assailant  must  be  borne  by  him.  While,  however,  the  undersigned 
is  directed  to  claim  the  right  as  due  to  all  neutrals,  he  will  not  omit  to 
acknowledge  the  partial  exception  made  in  favor  of  the  minister  of  the 
United  States  for  the  reasons  assigned." 

Mr.  Fish,  Sec.  of  State,  to  Baron  Gerolt,  Nov.  21,  1R70.     MSS.  Notes,  Germ. ; 
For.  Rel.,  1870. 

"  The  refusal  of  the  German  authorities  at  the  investment  of  Paris  to 
allow  the  United  States  minister  there  to  send  a  messenger  to  London 
with  a  pouch,  with  dispatches  from  his  legation,  unless  the  contents  of 
the  pouch  should  be  unsealed,  must  be  regarded  as  an  uncourteous 
proceeding,  which  cannot  be  acquiesced  in  by  this  Government.  Block- 
ade by  both  sea  and  land  is  a  military  measure  for  the  reduction  of  an 
enemy's  fortress,  by  preventing  the  access  of  relief  from  without,  and 
by  compelling  the  troops  and  inhabitants  to  surrender  for  want  of  sup- 
plies. When,  however,  the  blockaded  fortress  happens  to  be  the  capi- 
tal of  the  country  where  the  diplomatic  representative  of  a  neutral  state 
resides,  has  the  blockading  force  a  right  to  cut  him  off  from  all  inter- 
course by  letter  with  the  outer  world,  and  even  with  his  own  Govern- 
ment ?  No  such  right  is  either  expressly  recognized  by  public  law,  or 
is  even  alluded  to  in  any  treatise  on  the  subject.  The  right  of  legation, 
however,  is  fully  acknowledged,  and,  as  incident  to  that  right,  the 
privilege  of  sending  and  receiving  messages.  This  privilege  is  ac- 
knowledged in  unqualified  terms.  There  is  no  exception  or  reservation 
looking  to  the  possibility  of  blockade  of  a  capital  by  a  hostile  force. 
Although  such  blockades  are  not  of  frequent  occurrence,  their  liability 
to  happen  must  have  presented  itself  to  the  minds  of  the  writers  oh 
public  law,  and,  if  they  had  supposed  that  the  right  of  sending  mes- 
sengers was  merged  in  or  subordinate  to  the  belligerent  rights  of  the 
assailant,  they  certainly  would  have  said  so.  Indeed,  the  rights  of 
legation  under  such  circumstances  must  be  regarded  as  paramount  to 
any  belligerent  right.  They  ought  not  to  be  qMCStioned  or  curtailed, 
unless  the  attacking  party  has  good  reason  to  believe  that  they  will  be 

661 


§  97.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

abused,  or  unless  some  military  necessity,  which  upon  proper  state- 
ment must  be  regarded  as  obvious,  shall  require  the  curtailment. 

"Tiie  condition  upon  which  the  sending  of  messengers  was  oflered 
was  humiliating,  and  could  not  be  accepted  by  any  diplomatic  agent 
with  any  self-respect.  Correspondence  between  those  officers  and  their 
Governments  is  always  more  or  less  confidential,  and  it  is  unreasonable 
to  suppose  that  its  inspection  by  the  blockading  force  should  be  per 
mitted.  Indeed,  the  requirement  of  such  a  condition  must  be  regarded 
as  tantamount  to  an  imputation  both  upon  the  integrity  of  the  minister 
and  the  neutrality  of  his  Government. 

"You  will  conse(juently  remonstrate  against  the  exercise  of  authority 
adverted  to  as  being  contrary  to  that  paramount  ri^ht  of  legation  which 
every  independent  nation  ought  to  enjoy,  and  in  which  all  are  equally 
interested. 

"Prussia  has  heretofore  been  a  leading  champion  of  the  rights  of 
neutrals  on  the  ocean.  She  has,  even  during  the  existing  war,  made 
acknowledged  sacrifices  to  her  faith  and  consistency  in  that  respect. 
The  course  of  her  arms  on  land  does  not  seem  to  warrant  or  require  any 
enforcement  of  extreme  belligerent  claims  in  that  quarter  as  against 
neutrals. 

"An  analogous  privilege  of  legation  was  upon  several  occasions  suc- 
cessfully asserted  by  this  Government  during  the  late  war  between 
Brazil  and  her  allies  on  the  one  side  and  Paraguay  on  the  other.  Mr. 
Washburn,  the  United  States  minister  to  Paraguay,  applied  for  a  per- 
mit to  take  him  through  the  hostile  lines  to  Asuncion,  his  destination. 
The  application,  though  at  first  rejected,  was  ultimately  granted.  Ap- 
plication was  subsequently  made  for  leave  for  General  McMahon,  his 
successor,  to  pass  the  same  lines,  and  for  the  vessel  which  carried  him 
to  bring  back  Mr.  Washburn.  This,  also,  though  at  first  refused,  was 
ultimately  granted.  There  is  reason  to  believe  that  the  course  taken 
by  this  Government  on  those  occasions  was  approved  by  other  Govern- 
ments. It  is  probable  that  other  Governments  would  also  sanction  the 
claim  of  the  United  States  in  this  case." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bancroft,  Nov.  11,  1870.     MSS.  lust.  Germ. ;  For. 
Rel.,  1870. 

'■I  have  received  your  Xo.  183,  of  the  21st  ultimo,  accompanied  by 
the  original  of  a  letter  from  Count  Bismarck  replying  to  my  note  of 
November  21  to  Baron  Gerolt,  and  also  a  translation  of  the  same.  1 
am  happy  to  think  that  the  question  discussed  in  my  note,  and  in 
Count  Bismarck's  reply,  is  no  longer  one  of  practical  application  to 
any  probable  occurrences.  It  is  therefore  quite  unnecessary  to  con 
sider  whether  the  approach  of  a  hostile  force,  and  its  military  pre]»ara- 
tions  for  the  capture  of  a  city  which  has  been  for  ages  the  seat  of  Gov- 
ernment and  the  capital  of  the  country,  where  the  political  head  of 
that  country  is  and  has  been  established,  where  its  minister  of  foreign 
itffairs  has  his  office  and  his  archives,  where  the  representatives  of 
662 


CHAP.  III.]  FREE    TRANSIT    AM)    COMMrMCATION.  [§  97. 

other  power.s  liave  been  and  aic  lesideut,  can  so  couveit  that  city  iuto 
a  military  fortress  as  to  a|»ply  to  it  the  rules  ol"  war  ajiplicable  to  for- 
tresses as  (listinj;nish<'d  lioni  other  towns.  Or  wln-lher  snrh  ajjproach 
and  military  demonstrations  of  a  hostile  force  impose  upon  the  diijlo- 
matic  representatives  of  other  and  neutral  states  the  alternative  ot 
abandoning  their  posts  and  their  duties,  or  of  privation  of  the  right  of 
free  and  uninterru])ted  <-.orrespondence  with  tJieir  Goveiiunent,  which 
public  law,  no  less  than  international  comity,  accords  in  the  interest  of 
peace.  I  inclose  herewith  copies  of  a  correspondence  between  Mr. 
Washburne  and  Count  l>ismarck  on  the  subject  of  the  transmission  of 
Mr.  Washburne's  dispatches.  You  will  observe  that  in  this  corre- 
spondence Count  Bismarck,  under  date  of  January  15,  admits  that  the 
delay  to  which  the  transmission  of  the  correspondence  of  this  Govern- 
ment with  its  minister  in  Paris  was  subjected  depended  upon  the  prin- 
ciple adopted  by  the  general  staff  of  the  German  army,  allowing  no 
sealed  packages  or  letters  to  pass  through  their  lines  in  either  direction 
without  a  stoppage  of  several  days,  and  he  cautiously  disclaims  one 
act  of  immediate  transmission  being  taken  as  a  precedent.  The  Presi- 
dent desires  to  make  all  proper  allowance  for  the  military  exigencies 
which  are  represented  to  have  led  to  the  withholding  and  detaining  of 
the  oflticial  correspondence  of  the  minister,  and  is  gratified  to  receive 
the  recognition  in  Count  Bismarck's  letter  of  28th  of  January  to  Mr. 
Washburne  of  the  right  of  correspondence  contended  for  in  my  note 
to  Baron  Gerolt  of  21st  November  last,  and  his  assurance  that  the 
delay  to  which  it  was  subjected  proceeded  from  causes  which  he  could 
not  remove. 

"  Recent  events,  it  is  confidently  hoped,  have  removed  the  probability 
of  any  recurrence  of  the  interruption  of  free  correspondence.  And 
Count  Bismarck's  assurance  to  Mr.  Washburne  that  'the  delay  ocL-ur- 
ring  now  and  then  in  the  transmission  of  your  dispatch-bag  is  not  occa- 
sioned by  any  doubt  as  to  the  right  of  your  Government  to  correspond 
with  you,  but  by  obstacles  it  was  out  of  my  power  to  remove,'  confirms 
this  Gov^ernment  in  its  confidence  of  an  entire  agreement  between  it 
and  IsTorth  Germany  on  the  question  of  the  right  and  the  inviolability 
of  correspondence  between  a  Government  and  its  representative,  and 
of  the  absence  of  any  intentional  interference  with  that  right  in  the  case 
of  its  minister  to  Paris.  I  send,  herewith,  a  copy  of  a  dispatch  of  this 
date  to  Mr.  Washburne. 

"As  Count  Bismarck's  recognition  of  the  right  for  which  I  contended 
in  my  note  to  Baron  Gerolt  is  subsequent  to  his  letter  to  you  of  loth 
January,  and  admits  what  1  felt  it  my  duty  to  claim,  there  does  not 
appear  to  be  any  necessity  for  continuing  the  discussion,  unless  the 
subject  be  agaiu  referred  to  by  the  German  minister,  in  which  case  you 
are  authorized  to  rea  1  to  him  this  dispatch." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Baucroft,  Feb.  24, 1871.     MSS.  lust.,  Germ. ;  For. 
Rel.,1871. 

663 


§  97.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

"Your  letters  to  Count  Bismarck  ou  tbe  subject  of  the  dispatch-bag:, 
and  its  conveyance  to  and  from  Paris,  meets  tbe  entire  approval  of  the 
Departmcint.     It  is  dignified,  forcible,  and  just. 

•'It  was  not  nnnatural  that  the  powers  besieging  Paris  during  their 
long  and  terrible  efforts  should  have  had  their  susceptibilities  aroused 
at  times,  by  the  various  rumors  and  statements  (originated  and  put  in 
circulation  possibly  for  the  very  purpose  of  operating  upon  those  sus- 
ceptibilities) of  information  prejudicial  to  their  military  operations  being 
conveyed  into  and  from  the  beleaguered  capital. 

"But  it  would  be  very  much  to  be  regretted,  and  would  have  been 
very  unjust,  had  even  a  momentary  suspicion  found  its  lodgment  in 
minds  capable  of  achieving  the  results  that  have  attended  the  civil  and 
military  operations  of  Germany  toward  the  representative  of  a  friendly 
state,  and  that  representative  being  the  one  who,  at  the  request  of 
Germany,  and  with  the  consent  of  his  own  Government,  had  charged  him- 
self with  the  arduous  and  critical  duty  of  the  care  and  protection  of  the 
German  residents  shut  in  with  the  millions  of  Frenchmen  in  the  capital 
which  Gennany  was  endeavoring  to  reduce  by  siege,  starvation,  and 
bombardment. 

''The  President  observes,  however,  with  satisfaction  the  very  just 
disclaimer  of  any  suspicion  of  the  good  faith  of  our  conduct,  in  the  let- 
ter of  the  chancellor  of  the  Korth  German  Union  to  you,  under  date  of 
28th  January  last. 

"The  question  of  the  right  of  uninterrupted  correspondence  between 
a  neutral  power  and  its  representative,  duly  accredited  and  resident  in 
the  capital  of  a  belligerent,  which,  while  he  is  thus  resident,  becomes 
the  object  of  attack  and  siege  by  another  belligerent,  is  now,  happily, 
no  longer  one  of  immediate  practical  application. 

"It  is  satisfactory  to  notice  that,  although  Count  Bismarck,  in  his 
note  addressed  to  you  on  6th  December  last,  speaks  of  'obtaining  for 
the  legation  of  the  United  States  the  privilege  of  receiving  closed  dis- 
patches,' in  his  note  of  January  28,  from  Versailles,  he  recognizes  the 
principle  asserted  by  me  in  a  note  addressed  to  Baron  Gerolt  on  21st 
November  last  (of  which  a  copy  was  sent  to  you  with  my  No.  206  of  22d 
November),  and  admits  of  no  'doubt  as  to  the  right  of  your  Government 
to  correspond  with  you.' 

"The  delays  and  interruptions  to  that  right  are,  I  trust,  wholly  of  the 
past,  and  may  have  been,  and  it  is  hoped  were,  the  unavoidable  acci- 
dents of  the  then  pending  military  strife.  In  the  absence  of  any  recur- 
rence, we  are  content  with  the  recognition  so  fully  made  by  Count  Bis^ 
marck  of  the  right  which  we  claimed." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Washburue,  Feb.  24,  1871.     MSS.  lust.,  France. 
Documents  attached  to  President  Hayes's  message  of  Feb.  6,  1878. 

"  Couriers  and  bearers  of  dispatches,  employed  by  a  diplomatic  agent 
in  the  service  of  his  Government,  are  privileged  i)ersous,  as  far  as  is 
necessary  for  their  particular  service,  whether  in  the  state  to  which  the 

664 


CHAP.  IV.]  PRIVILEGED    FROM    TESTIFYING.  [§  98. 

agent  is  accredited,  or  in  the  territories  of  a  third  statt-  with  which  the 
Government  they  serve  is  at  peace. 

"It  is  expected  that  coniniunications  to  the  Department  will  be  sent 
by  mail ;  or,  if  by  jirivate  hand,  that  no  i)roniise  l)e  made  to  the  person 
so  employed  of  compensation,  or  of  a  rt'imbnrsem«Mit  of  his  expenses, 
withont  the  previons  authority  of  the  Department,  and  that  no  ground 
of  expectation  of  com])ensation  or  of  reimbursement  of  exjienses  \>v 
given.  It  may  happen  that  responsible  ]nivate  individuals  ofter  their 
service,  without  expectation  of  compensation,  for  the  conveyance  of 
official  communications  to  the  Department,  or  from  one  legation  to 
another.  Such  courteous  otters  may  sometimes  be  accei)ted  if  deemed 
advisable. 

"  It  is  not  intended  to  prevent  diplomatic  agents  abroad  from  em- 
ploying couriers  at  the  public  expense  when  the  mails  are  obstructed, 
or  deemed  unsafe,  and  when  there  may  be  occasion  to  address  the  De- 
partment on  subjects  materially  afiecting  interests  of  the  United  States 
which  might  sufler  from  delay  or  reasonably  apprehended  interrup- 
tion in  the  transmission  of  the  dis])atch.  The  exercise  of  the  utmost 
discretion  is,  however,  enjoined  in  judging  of  these  exigencies.  When- 
ever the  minister  shall  determine  to  send  a  courier,  he  will  inform  this 
Department  of  the  fact,  assigning  the  reasons  therefor,  and  stating  the 
compensation  he  recommends  to  be  allowed  him.  The  Secretary  of 
State  nevertheless  reserves  to  himself  the  right  in  all  cases  to  judge  of 
the  necessity  for  the  employment  of  a  messenger,  and  of  the  propriety  of 
paying  the  whole  or  any  i)art  of  the  compensation  whieh  may  have  been 
recommended.  This  should  be  fully  explained  by  the  minister  to  the 
messenger  before  intrusting  him  with  the  disi)atches. 

"  When  a  bearer  of  dispatches  is  employed  as  above,  a  special  i>ass- 
port  may  be  given  to  him  by  the  diplonuitic  agent,  setting  forth  his 
name  and  the  duty  he  is  to  perform.  Su<;h  a  passi)ort  is  to  be  furnished 
without  charge,  and  is  only  good  for  the  journey  for  which  it  is  issued." 

Printed  Pere.  lust.  Dip.  Agents,  1885. 

XXII.  PRIVILEGED  FROM  TESTIFYING. 

§98. 

Whether  an  attach^  of  a  foreign  mission  can  be  required  to  attend  a 
local  court  of  justice  as  a  witness  is  a  question  at  the  outset  for  such 
court  to  determine. 

Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Bill6,  Oot.  23, 18:50.     MSS.  Notes,  For.  Leg. 

In  1854  ]Mr.  Dillon,  then  consul  of  France  at  San  Francisco,  was 
brought  into  the  United  States  district  court,  then  sitting,  on  an  attach- 
ment for  refusing  to  obey  asubpa'ua  (luces  iccnm  issued  from  thatc<uirt  to 
compel  his  attendance  at  a  criminal  trial  then  and  tliere  pending.  Mi-. 
Dillon  i)rotested  against  the  process  on  two  grounds:  (1)  Immunity 
from  such  process  by  international  law;  (2)  ininmnity  under  the  French- 
American  tieaty.  The  second  })oint  was  merged  in  argument  in  the 
first,  since  it  was  agreed  by  counsel  that  tlie  tK-aty  i)rivileg<'  could  not 
stand  in  the  way  of  a  ])arty's  constitutional  right  to  meet  tin'  witness 
against  him  face  to  face,  unless  that  privilege  was  in  accordance  with 
public  international  law.  On  this  question  the  court  (Hoflman,  J.) 
spoke  as  follows : 

"  If  the  accused,  by  virtue  of  the  constitutional  provision  in  this  case, 
can  com  per  the  attendance  of  the  consul  of  France,  it  seems  necessarily 

665 


§  98.]  DIPLOMATIC    AGENTS.  [CHAP.  IV 

to  follow  the  attendance  of  an  ambassador  could  in  like  manner  be  en- 
forced. 

"The  immunity  afforded  to  and  personal  inviolability  of  ambassadors, 
now  universally  recognized  by  the  law  of  nations,  has  been  deemed  one 
of  the  most  striking-  instances  of  the  advance  of  civilization  and  the 
l)ro8ress  of  enlightened  and  liberal  ideas.  Though  resident  in  a  foreign 
country  to  which  they  are  deputed  (1  Kent's  Com.,  45),  their  persons 
have,  by  the  consent  of  all  nations,  been  deemed  inviolable :  nor  can 
they,  says  the  same  high  authority,  be  made  amenable  to  the  civil  or 
criminal  jurisdiction  of  the  country.  By  fiction  of  law  the  ambassador 
is  considered  as  if  he  were  out  of  the  territory  of  the  foreign  power,  and, 
though  he  resides  within  the  foreign  state,  he  is  considered  a  member 
of  his  own  country,  retaining  his  original  domicile,  and  the  Government 
he  represents  has  exclusive  cognizance  of  his  condnct  and  control  over 
his  person  (1  Kent's  Com.,  40).  Does,  then,  the  Constitution  of  the 
United  States,  by  the  provision  in  favor  of  persons  accused  of  crime, 
intend  to  subject  these  high  functionaries  to  the  process  of  the  courts, 
and  does  it  authorize  and  require  the  courts  in  case  of  disobedience  to 
violate  their  persons  and  disregard  immunities  universally  conceded 
to  them  by  the  law  of  nations,  by  imprisoning  them  ?  If,  as  is  the  re- 
ceived doctrine,  the  ambassador  cannot,  even  in  the  case  of  a  high  crime 
committed  by  himself,  be  proceeded  against,  it  is  obvious  that  for  a 
lesser  offense  of  a  contempt  or  disobedience  to  an  order  of  a  court,  he 
would  a  fortiori  not  be  amenable  to  the  law.  The  only  giouud  upon 
which  the  right  of  a  court  to  compel  the  attendance  of  an  embassador 
by  its  process,  and  to  punish  him  if  he  disobey  it,  can  be  placed,  is  that 
the  Constitution  is  in  this  case  in  conflict  with  and  paramount  to  the 
law  of  nations,  and  the  immunity  usually  conceded  to  ambassadors  is, 
by  the  provision  in  favor  of  the  accused  in  criminal  cases,  taken  away. 

"But  the  privilege  of  ambassadors  from  arrest,  under  any  circum- 
stances, has  been  declared  by  Congress  by  special  legislation.  By  the 
twenty-fifth  section  of  the  act  of  Congress  of  April  30, 1790,  it  is  enacted 
that  'if  any  writ  or  j)rocess  sue  ont  of  any  courts  of  the  United  States, 
or  of  a  particular  State,  or  by  any  judge  or  justice  therein  respectively, 
whereby  the  i)erson  of  an  ambassador  may  be  arrested  or  imprisoned, 
or  his  goods  distrained,  seized,  or  attached,  such  writ  and  process  shall 
be  deemed  and  adjudged  to  be  utterly  null  and  void  to  all  intents,  con- 
struction, and  purposes  whatever.' " 

When  the  attachment  was  served  on  Mr.  Dillon,  he  hauled  down  his 
consular  flag;  and  the  case  was  taken  up  by  the  French  minister  at 
Washington,  as  involving  a  gross  disrespect  to  France.  A  long  and 
animated  controversy  between  Mr.  Marcy,  then  Secretary  of  State,  and 
the  French  Government  ensued.  The  fact  that  an  attachment  had  issued 
under  which  Mr.  Dillon  was  brought  into  court  was  regarded  by  the 
French  Government  as  not  merely  a  contravention  of  the  treaty.,  but  an 
offense  by  international  law;  and  it  was  argued  that  the  disrespect  was 
not  purged  by  the  subsequent  discharge  of  Mr.  Dillon  from  arrest.  It 
was  urged,  also,  that  the  fact  that  the  subpa'ua  contained  tlie  clause 
duces  tecnni  invoive<l  a  violation  of  the  consular  archives.  Mr.  Marcy, 
in  a  letter  of  September  11,  1854,  to  Mr.  Mason,  then  minister  at  Paris, 
discusses  these  questions  at  great  length.  He  maintains  that  the  pro- 
vision in  the  Federal  Constitution  giving  defendants  opportunity  to  meet 
witnesses  produced  against  them  face  to  face,  overrides  conflicting  treat- 
ies, unless  in  cases  where  such  treaties  embody  exceptions  to  this  right 
recognized  as  such  when  the  Constitution  was  framed.    One  of  these 

666 


CHAP.  IV.]  PRIVILEGED   FROM    TESTIFYING.  [§  98. 

exceptions  relates  to  the  case  of  diplomatic  representatives.  "As  the 
law  of  evidence  stood  when  the  Constitution  went  into  cflect,"  says  Mr. 
Miircy,  "  ambassadors  and  ministers  could  not  be  served  with'  com- 
pulsory process  to  api)ear  as  Avitnesses,  and  the  clause  in  the  Const  it  uti<tii 
referred  to  did  not  give  the  defendant  the  right  in  criminal  prosecutions 
to  compel  their  attendance  in  court."  This  privilege,  however,  Mr. 
Marcy  maintained,  did  not  extend  to  consuls,  and  consuls,  therefore, 
could  only  i)rocure  the  privilege  when  given  to  them  by  treaty  which, 
in  criminal  cases,  was  subject  to  the  limitations  of  the  Constitution  of 
the  United  States.  Mr.  Marcy,  however,  finding  that  the  French  C.ov- 
ernment  continued  to  regard  the  attachment,  with  the  subpoMia  ducex 
tecum,  as  an  attack  on  its  honor,  ottered,  in  a  letter  to  Mr.  Mason,  dated 
January  18,  1855,  to  compromise  the  matter  by  a  salute  to  the  French 
flag  upon  a  French  man-of-war,  stopi)ing  at  San  Francisco.  Count  de 
Sartiges,  the  French  minister  at  Washington,  asked  in  addition  that 
when  the  consular  flag  at  San  F^raucisco  was  rehoisted,  it  should  re- 
ceive a  salute.  This  was  declined  by  Mr.  Marcy.  In  August,  1855, 
after  a  long  and  protracted  coutrovensy,  the  French  Government  agreed 
to  accept  as  a  sufficient  satisfaction  an  expression  of  regret  by  the  Gov- 
ernment of  the  United  States,  coupled  with  the  provision  that  "when  a 
French  national  ship  or  scpiadron  shall  ajjpear  in  the  harbor  of  San 
Francisco  the  United  States  authorities  there,  military  or  naval,  will 
salute  the  national  flag  borne  by  such  ship  or  squadron  with  a  national 
salute,  at  an  hour  to  be  specitied  and  agreed  on  with  the  French  naval 
commanding  officer  present,  and  the  French  ship  or  squadron  whose 
flag  is  thus  saluted  will  return  the  salute  gun  for  gun." 

In  re  Dillon,  2  Sawyer,  564,  565. 
As  to  saluting  flag,  see  infra,  ^  315. 

"  The  Constitution  is  to  prevail  over  a  treaty  where  the  provisions  of 
the  one  come  in  conflict  with  the  other.  It  would  be  difficult  to  find  a 
reputable  lawyer  in  this  country  who  would  not  yield  a  ready  assent  to 
this  proposition.  Mr.  Dillon's  counsel  admitted  it  in  his  argument  for  the 
consul's  privilege  before  the  court  iu  California.  The  sixth  amendment  to 
the  United  States  Constitution  gives,  in  general  and  comprehensive  lan- 
guage, the  right  to  a  defendant  iu  criminal  prosecutions  to  have  compul 
sory  process  to  procure  the  attendance  of  witnesses  iu  his  favor.  Neither 
Congress  nor  the  treaty-making  power  are  competent  to  put  any  restric- 
tion on  this  constitutioual  provision.  There  was,  however,  at  the  time  of 
its  adoption,  some  limit  to  the  range  of  its  operation.  It  did  not  give  to 
such  a  defendant  the  right  to  have  compulsory  process  against  all  per- 
sons whatever,  but  only  against  such  as  were  subject  to  subpiena  at 
that  time,  such  as  might  by  existing  law  be  witnesses.  There  were  then 
persons  and  classes  of  persons  who  were  not  thus  subject  to  that  proc- 
ess, who,  by  privileges  and  mental  disqualifications,  could  not  be 
made  witnesses,  and  this  constitutional  provision  did  not  confer  the 
right  on  the  defendant  to  have  compulsory  process  against  them.  As 
the  law  of  evidence  stood  when  the  Constitution  went  into  eftect,  am- 
bassadors and  ministers  could  not  be  served  with  compidsory  process 
to  appear  as  witnesses,  and  the  clause  in  the  Constitution  referred  to 
did  not  give  to  the  defendant  in  criiniual  proscculious  the  right  to  com- 

667 


§  98.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

l)el  tbeir  attendance  in  coui-t.  But  what  was  the  case  in  this  respect  as 
to  consuls  ?  They  had  not  the  dii)lomatic  privileges  of  embassadors 
and  ministers.  After  the  adoption  of  the  Constitution  the  defendant 
in  a  criminal  prosecution  had  the  right  to  compulsory  process  to  bring 
into  court  as  a  witness  in  his  behalf  any  foreign  consul  whatsoever.  If 
he  then  had  it,  and  has  it  not  now,  when  and  how  has  this  constitu- 
tional right  been  taken  from  him  ?  Congress  could  not  take  it  away, 
neither  could  the  treaty-making  power,  for  it  is  not  within  the  compe- 
tence of  either  to  modify  or  restrict  the  operation  of  any  provision  of 
the  Constitution  of  the  United  States." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Masou,  Sept.  11,  1854.  MSS.  Inst.,  France. 
See  as  toi)aramount  authority  of  Constitution  in  such  cases,  Mr.  Marcy,  Sec. 
of  State,  to  Mr.  Mason,  Jan.  18,  1855.     Ibid. 

"  France  was  the  early  aud  eflScient  ally  of  the  United  States  in  their 
struggle  for  independence.  From  that  time  to  the  present,  with  occa- 
sional slight  interruptions,  cordial  relations  of  friendship  have  existed 
between  the  Governments  and  people  of  the  two  countries.  The  kindly 
sentiments,  cherished  alike  by  both  nations,  have  led  to  extensive  social 
and  commercial  intercourse,  which,  I  trust,  will  not  be  interrupted  or 
checked  by  any  casual  event  of  an  apparently  unsatisfactory  character. 
The  French  consul  at  San  Francisco  was,  not  long  since,  brought  into 
the  United  States  district  court  at  that  place,  by  compulsory  process, 
as  a  witness  in  favor  of  another  foreign  consul,  in  violation,  as  the 
French  Government  conceives,  of  his  privileges  under  our  consular 
convention  with  France.  There  being  nothing  in  the  transaction  which 
could  imply  any  disrespect  to  France  or  its  consul,  such  explanation 
has  been  made  as  I  hope  will  be  satisfactory.  Subsequently,  misun- 
derstanding arose  on  the  subject  of  the  French  Government  having,  as 
it  appeared,  abruptly  excluded  the  American  minister  to  Spain  from 
passing  through  France,  on  his  way  from  London  to  Madrid.  But  that 
Government  has  unequivocally  disavowed  any  design  to  deny  the  right 
of  transit  to  the  minister  of  the  United  States  ;  and,  after  exi>lanations 
to  this  effect,  he  has  resumed  his  journey,  and  actually  returned  through 
France  to  Spain.  I  herewith  lay  before  Congress  the  correspondence 
on  this  subject  between  our  envoy  at  Paris  and  the  minister  of  foreign 
relations  of  the  French  Government." 

President  Pierce,  Second  Aimnal  Message,  1854. 

"A  case  of  homicide  having  occurred  at  Washington,  in  1850,  in  the 
presence  of  the  Dutch  minister,  whose  presence  v,'as  deemed  altogether 
material  for  the  trial,  'and  inasmuch  as  he  was  exempt  from  the  ordi- 
nary process  to  compel  the  attendance  of  witnesses,'  an  application 
was  made  by  the  district  attorney,  through  the  Secretary  of  State,  to 
Mr.  Dubois  to  appear  and  testiify.  The  minister  having  refused,  by 
the  unanimous  advice  of  his  colleagues,  in  a  note  of  the  llth  of  May, 
1856,  to  the  Secretary  of  State,  to  appear  as  a  witness,  Mv.  Marcy  in- 
structed, May  15,  1856,  Mr,  Belmont,  minister  of  the  United  States  at 

668 


CHAP.  IV.]  PRIVILEGED    FROM    TESTIFYING.  [§  98. 

the  Hague,  to  bring  the  matter  to  the  attention  of  llie  Netherhinds  (iov 
eminent.  He  says,  that 'it  is  not  <hjnbte<l  that  l)oth  by  tin- nsajre  ot 
nations  and  the  laws  of  the  United  ^States,  M.  J)ul)()is  has  the  legal  right 
to  decline  to  give  his  testimony;  but  he  is  at  pciileijt  liberty  to  exen^ise 
this  privilege  to  the  extent  requested,  and  by  doing  so  he  does  not  sub- 
ject himself  to  the  jurisdiction  of  the  country.  The  circumstances  of 
this  case  are  such  as  to  appeal  strongly  to  the  universal  sense  of  justice. 
In  the  event  of  M.  Van  Hall's  suggesting  that  M.  Dubois  might  give 
Ills  deposition  out  of  court  in  the  case,  you  will  not  omit  to  state  that 
by  our  Constitution,  in  all  criminal  prosecutions,  the  accused  has  the 
right  to  be  confronted  with  the  witnesses  against  him,  and  hence,  in 
order  that  the  testimony  should  be  legal,  it  must  be  given  before  the 
court.'  M.  Van  Hall,  June  9,  1856,  in  a  note  to  Mr.  Belmont,  declined 
authorizing  the  minister  to  appear  in  court.  He  said  that  •  availing 
himself  of  a  prerogative  generally  conceded  to  the  members  of  the  diplo- 
matic body,  and  recognized  also  by  the  laws  of  the  Republic,  as  ad- 
verted to  by  Mr.  Marcy,  M.  Dubois  refused  to  ai)pear  before  a  court 
of  justice ;  but  being  desirous  to  at  once  reconcile  that  prerogative  with 
the  requirements  of  justice,  he  suggested  a  middle  course  of  action, 
and  proposed  to  Mr.  Marcy  to  give  his  declaration  umler  oath,  should 
he  be  authorized  to  that  effect  by  the  Government  of  the  Netherlands. 
After  taking  the  King's  orders  on  the  subject,  I  did  not  hesitate  to  give 
such  authority  toM.  Dubois,  approving  at  the  same  time,  and  tbrmally, 
the  line  of  conduct  which  he  pursued  on  that  occasion.'  M.  Dubois 
addressed  a  note  to  I\Ir.  Marcy,  on  the  21st  of  June,  stating  that  he  was 
authorized  to  make  his  declaration  under  oath  at  the  Department  of 
State,  adding,  'it  is  understood  that,  on  such  an  occasion,  no  mention  is 
to  be  made  of  a  cross-examination,  to  which  1  could  not  subject  myself.' 
The  declaration  was  not  taken,  as  the  district  attorney  stated  that  it 
would  not  be  admitted  as  evidence." 

Lawreuce's  Wheaton  (ed.  1863),  393,  394. 

The  correspondence  of  the  Government  of  the  Netherlands,  in  refus- 
ing to  allow  its  diplomatic  agent  to  testify  in  the  criminal  courts  of  the 
United  States,  is  given  in  Senate  Ex.  Doc.  No.  21,  34th  Cong.,  3d  sess. 

See  also  Dana's  Wheaton,  §  225,  note  125. 

On  the  trial  of  Guiteau,  Senor  Camacho,  minister  from  Venezuela,  who 
was  present  at  President  Garfield's  assassination,  was  called  as  a  wit- 
ness for  the  prosecution.  Before  he  was  sworn  the  following  statement 
was  made  bv  the  district  attorney: 

"  If  your  honor  please,  before  the  gentleman  is  sworn,  I  desire  to  state, 
or  rather  I  think  it  due  to  the  witness  to  state,  that  he  is  the  minister 
from  Venezuela  to  this  Government,  and  entitled  under  the  law  gov- 
erning diplomatic  relations  to  be  relieved  from  service  by  subpcena  or 
sworn  as  a  witness  in  an#y'  case.  Under  the  instiuctioiis  of  his  Govern- 
ment, owing  to  the  friendship  of  that  Government  for  the  United  States, 
and  the  gi^eat  respect  for  the  memory  of  the  nuin  who  was  assassinated, 
they  have  instructed  him  to  waive  his  rights  and  appear  as  a  witness 
in  the  case,  the  same  as  any  witness  who  is  a  citizen  of  this  country." 

Guiteau's  Trial,  I,  136. 

"A  foreign  diplomatic  representative  cannot  be  comi>elled  to  testify, 
in  the  country  of  his  sojourn,  before  any  tribunal  whatsoever.  This 
right  is  regarded  as  appertaining  to  his  office,  not  to  his  person,  and  is 

669 


§  99.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

one  of  which  l)e  ciiniiot  divpst  himself  exce])t  by  the  consent  of  his  Gov- 
ernment. Therefore,  even  if  a  diplomatic  agent  of  the  United  States 
be  called  upon  to  give  testimony  under  circumstances  which  do  not  con- 
cern the  business  of  his  mission,  and  which  are  of  a  nature  to  counsel 
him  to  respond  in  the  interest  of  justice,  he  should  not  do  so  without 
the  consent  of  the  President,  obtained  through  the  Secretary  of  State, 
which  in  any  such  case  would  probably  be  granted." 

Printed  Pers.  Inst.  Dip.  Agents,  1885. 

As  to  consular  privileges  in  this  respect,  see  infra,  ^  120. 

XXIII.  CANNOT  BECOME  BUSINESS  AGENTS. 

§  99. 

A  public  minister  cannot  act  as  agent  for  the  collection  of  private 
claims  without  injury  to  the  dignity  and  decorum  of  the  public  service. 
Mr.  J.  Q.  Adams,  as  reported  in  4  Mem.  J.  Q.  Adams,  347. 

It  is  not  within  the  province  of  the  Department  of  State  to  make  in- 
quiries abroad  as  to  matters  of  the  purely  private  business  of  citizens 
of  the  United  States,  though  applied  to  by  such  citizens. 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Hough,  Mar.  13,  184(5.     MSS.  Dom.  Let. 

The  Department  will  not,  at  the  suit  of  private  claimants,  call  upon 
foreign  ministers  to  make  inquiries  in  the  countries  where  they  are  res- 
ident as  to  the  business  interests  of  such  claimants. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.   Reedy,  Aug.  21,  1856.     MSS.  Dom.  Let.     Mr. 
Marcy  to  Mr.  French,  Dec.  12,  1856 ;  ibid. 

"It  is  not  within  the  province  of  a  minister  of  the  United  States 
abroad  to  present  private  claims  unless  they  are  the  result  of  a  viola- 
tion of  international  law  by  the  Government  addressed." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Eliot,  May  12,  1869.     MSS.  Dom.  Let. 

"  The  aid  of  the  diplomatic  representatives  of  the  Government  is  fre- 
quently requested  for  the  prosecution  of  private  investigations,  but  this 
Department  does  not  feel  justified  in  being  the  medium  of  conveying' 
requests  of  that  character,  which  necessarily  involve  much  labor  and 
investigation,  and  occasionally  considerable  expense, — and  when  some- 
times an  official  sanction  may  be  inferred  from  the  source  through  which 
certain  facts  are  obtained,  to  the  private  and  individual  theories  of  the 
author  who  may  use  the  information  thus  obtained  through  official 
channels. 

"  It  is  a  rule,  therefore,  of  this  Department  not  to  impose  upon  the 
diplomatic  agents  of  the  Government  the  labor  of  obtaining  informa- 
tion of  the  kind  sought  by  Mr.  Burt,  except  when  sought  for  the  official 
use  of  some  of  the  Departments  of  Government. 

"In  the  present  case  it  is  believed,  from  the  nature  of  the  informa- 
tion sought,  that  Mr.  Burt  will  find  little  difficulty  in  obtaining  it  through 
other  agencies.  There  will  be  no  objection  to  his  making  an  individual 
670 


('•HAP.  IT.]  CANNOT    BECOMr:    HTTSINESS   AGENTS.  *[^\  lOO. 

applicatiou  in  his  owu  name  to  the  minister  at  Vienna,  who  will  Iw  ;it 
liberty,  if  he  i.s  tluis  inclined,  to  undertake  the  labor.  r>u(  tliis  Drpmt- 
nient  cannot  inii)OHe  the  ta.sk  npon  him." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Kicbardsoii,  Nov.  1,  1h7;{.     MSS.  Ddin.  Let. 

"A  standing-  rule  of  the  service  prevents  ministers  Irom  acting:  as 
claim  agents  or  bankers  for  citizens  at  home  in  their  <lealin;js  with  the 
foreign  Government  to  which  they  are  accredited,  unless  the  l)c|)arl- 
ment  gives  them  permission  to  do  so." 

Mr.  FrfclingliuYsen,  Sec.  of  State,  to  Mr.  Wright,  Apr.  5,  ld64.  MSS.  JJom.  I.d. 
Sec  Mr.  Evarts.  See.  of  State,  to  Mr.  Yotler,  May2l,1880.  MSS.  Dom.  l,.-i.. 
infra,  ^  12:?. 

"It  Is  no  part  of  the  business  of  a  legation  to  act  as  a  safe  (k'i)<)sit 
institution,  and  no  responsibility  (of  insurance)  can  attach  to  tlu-  min- 
ister if  he  yield  to  the  request  and  take  such  property  into  his  keeping 
without  valuable  consideration." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Dec.  23, 1885.     MSS.  lust.,  Turkey. 

"  It  is  no  i)art  of  the  duty  of  this  Department  or  of  the  diplomatic  oi- 
consular  oflicers  of  the  United  States  abroad  to  attend  to  the  prosecu- 
tion of  the  private  claims  of  American  citizens  in  foreign  states,  espe- 
cially in  countries  like  Great  Britain,  where  the  courts  of  justice  are 
open  to  them." 

Mr.  Bayard,  Sec.  of  State,  to  Miss  Heald,  .July  9,  188t).     MSS.  Dom.  L«^t. 

"The  interposition  of  diplomatic  agents  is  often  asked  by  their  coun- 
trymen to  aid  in  the  collection  of  claims  against  the  (Jovernnieiit  to 
which  they  are  accredited.  Jf  the  claim  is  founded  in  contract,  they  will 
in  no  event  interfere  without  specific  instructions  to  do  so.  If  it  is 
founded  in  tort,  they  will  as  a  general  rule  in  like  manner  seek  jn-evious 
instructions  before  interfering,  unless  the  i)erson  of  the  claimant  be 
assailed,  or  there  be  i)ressing  necessity  for  action  in  his  behalf  before 
they  can  communicate  with  the  Department;  in  which  event  they  will 
communicate  in  full  the  reasons  for  their  action." 

Printed  Pers.  Inst.,  Dip.  Aj,'oiits,  1885. 

XXIV.  NOJi  REFRESENT  FOBEraX  COVERy.MEXTS.    ' 

§  100. 

A  minister  plenipotentiary  of  the  United  States  cannot,  without  the 
consent  of  Congress,  accept  a  similar  commission  from  another  jiower, 
though  he  is  not  prohibited  from  rendering  a  friendly  service  to  a  foreign 
power,  even  that  of  negotiating  a  treaty  for  it,  i)rovi(le(l  he  does  not 
become  an  officer  thereof. 

13  Op.,  537,  Akerman,  1871.  As  to  joint  action  with  other  ill  pi. unutistf.  m-o  hiftti, 
Un2. 

"Diplomatic  officers  are  sometimes  requested  to  discharge  tempo 
rarily  the  duties  of  those  of  other  countries.     It  nuiy  be  proi)ei-  as  a 

071 


§s^  101,  102.]  DIPLOMATIC    AGKNTS.  [CIIAP.  IV. 

matter  of  comity  to  accede  to  sucli  leqnests.  but  not  (miless  iiudei' 
nrfieiit  eircumstaiiees)  until  permission  has  been  granted  by  the  Depart- 
ment of  State.  I)i])lomatic  ofli<;ers,  however,  are  prohibited  by  the 
Constitution  (art.  1,  sec.  9)  from  performing,  without  the  consent  of 
Cojigress,  any  duties  for  any  foreign  Government  which  involve  the 
acceptance  of  office  from  such  foreign  Government." 

Printed  Pers.  lust.,  Dip.  Agents,  1885. 

As  to  gratuitous  services  in  sncli  cases,  see  infra,  ^  105. 

XXV.  SHOULD  BESIDE  AT  CAPITAL. 

§101. 

"  If  the  President  has  in  one  or  two  instances  acquiesced  in  the  resi- 
dence of  foreign  ministers  in  a  distant  city  of  the  Union,  it  has  been 
because  they  have  had  but  little  business  to  transact  with  this  Govern- 
ment, and  because  their  residence  there  has  given  rise  to  no  complaint 
of  breach  of  privilege  on  the  one  hand  or  of  personal  injury  to  American 
citizens  on  the  other." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Tacou,  Dec.   10,  1828.     MSS.  Notes,  For.  Leg. 

As  to  Mr.  Jackson's  action  in  this  line,  see  infra,  §  107. 

The  practice  of  residence  of  foreign  legations  at  other  places  than  the 
capital  is  beset  with  many  inconveniences,  and  cannot  be  looked  upon 
with  satisfaction  by  the  Government  of  the  United  States. 

Mr.  Vau  Bureu,  Sec.  of  State,  to  Mr.  Billd,  Oct.  23,  1830.     MSS.  Notes,  For.  Leg. 

XXVI.    JOINT  ACTION  WITH  OTHER   DIPLOMATIC   AGENTS    INADVISA- 
BLE. 

§102. 

The  policy  of  the  United  States  precludes,  as  a  rule,  the  appointment 
of  special  diplomatic  agents  to  confer  with  those  concerned  in  political 
movements  abroad. 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Kaufman,  April  30,  1840.     MSS.  Dom.  Let. 

But  consultation  between  the  several  diplomatic  representatives  at  a  foreign 
capital,  resulting  in  the  assumption  of  a  common  attitude  in  cases  of  pub- 
lic emergency,  is  not  inconsistent  with  the  above  rule.  Supra,  ^^  61,  67, 
68,  68a;  infra,  §  105. 

"It  is,  of  course,  neither  possible  nor  desirable  to  avoid  a  free  inter- 
change of  opinion  between  the  representative  of  the  United  States  and 
the  representatives  of  other  powers  upon  questions  of  common  concern 
arising  in  foreign  capitals.  Such  free  communication  is  not  only  ap- 
proved, but  is  especially  commended.  At  the  same  time  care  should  be 
taken  to  avoid,  as  far  as  iwssible,  formal  conventions  in  which  propo- 
sitions are  considered,  with  an  understanding  or  agreement  that  a  de- 
cision by  a  majority  of  representatives  shall  commit  or  bind  the  repre- 
sentative of  the  United  States.  A  consent  on  your  part  to  give  such 
an  effect  to  a  decree  of  a  council  of  representatives  would  be  virtually 
a  proceeding  derogating  from  the  authority  of  the  President,  and  if 
672 


ClIAP.  IV.]  DUTIES    AS    TO    ARCHIVES.  [v   103. 

npjiiovcMl  by  liiiii  would  luivc  the  .socmiii}.;-  but  iiiiicul  operation  to  bind 
the  United  States  by  his  own  individual  act,  in  diMoj^Mtion  of  tlu'  Con 
stitution,  which  requires  that  uo  engagement  shall  be  made  with  lorcign 
powers  other  than  by  treaty  solemuly  celebrated  by  the  l*resi«lent  and 
duly  ratified  by  the  Senate." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Hovey,  Feb.  25,  1867.     MSS.  Inst.  I'.-ni.     Se« 

supra,  $  90. 
As  to  importance  of  union  between  diplomatic  agents  abroad,  see  8  Julm  Ailain^' 

Works,  547,  549. 
As  to  joinder  of  foreign  ministers  at  Japan  and  China,  see  supra,  ^i^  G7-Cri. 
As  to  joint  action  with  other  powers  in  respect  to  affairs  in  South  Aniirica,  and 

the  West  Indies,  see  supra,  ^  57.     Tlie  objections  to  such  action  are  statnl 

by  Mr.  Everett,  in  notes  to  Count  Sartiges  and  Lord  John  Rus.sill,  ;41vlmi 

supra,  ^  72. 

XXVII.  DUTIES  AS  TO  ARCHIVES. 
§103. 

"  The  instructions  of  this  Department  to  its  diplomatic  agents  abroad 
have  for  a  long  series  of  years  past  strictly  prohibited  ministers  from 
retaining  for  their  private  information  or  use  copies  of  any  correspond- 
ence of  record  in  their  legations.  This  rule  has  been  found  necessary, 
not  oidy  because  such  archives  are  public  property,  which  no  private 
person  has  a  right  to  possess,  but  also  because  however  great  the  dis- 
cretion of  the  minister  doing  so  may  be  during  his  lifetime,  yet,  after 
his  death  the  instances  in  which  valuable  papers  in  relation  to  the  (con- 
fidential intercourse  of  this  Government  with  foreign  states  may  j)ass 
through  other  hands  into  unguarded  publicity,  are  not  rare." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Tuttle,  May  19,  1879.     MSS.  Doni.  Let. 

"The  following  record  books  should  be  kept  at  all  missions  of  the 
United  States  abroad : 

"A  dispatch-book,  into  which  are  to  be  coi)ied  all  official  commiinica- 
tious  written  by  the  diplomatic  agent  to  the  Department  of  State. 
Press-copy  books  are  not  to  be  considered  as  permanent  records. 

"A  note-hoolc,  into  which  are  to  be  copied  all  ollieial  coinmndications 
written  by  the  diplomatic  agent  to  the  Government  to  wlii.li  he  is  ac- 
credited. 

"A  letter  boolc,  into  which  are  to  be  cojued  all  other  ollieial  eommnni 
cations  written  by  the  diplomatic  agent.     This  book  should  contain  tiie 
record  of  his  letters  to  the  consular  otlicers  under  his  jurisdiction. 

"A  pa.ssj}ort-booJ{,  in  w^hich  are  to  be  registered  all  i)assp(U'ts  issued  or 
visaed  by  the  diplomatic  agent. 

"A  miscellaneous  record-booh;  for  the  entry  of  those  ()flicial  pajiers  and 
records  which  cannot  conveniently  be  classified  and  entered  in  the  rec- 
ord books  above  named— and  in  this  book  should  be  included  also 
coi)ies  of  such  translations  of  otlicial  j^apers  as  the  diplomatic  a-cnl 
may  forward  with  his  disi)atches  to  the  Dei)artment  of  State. 

"A  register  of  oficial  letters  received  at  the  Icqation,  which  shall  em- 
brace the  following  information  :  Name  of  the  writer,  number  and  date 
of  letter,  when  received,  its  import,  and  remarks  thereon,  as  i)rescnbed 
in  the  form  hereto  annexed. 

S.  Mis.  162— VOL.  I 43  * '  ^ 


§  104,]  DIPLOMA  TIP    AGENTS.  [CHAP.  IV. 

"A  register  of  o-fficial  Jettera  ncnt  from  the  le(j((tion,Hta,t\ng  the  date  and 
import  of  the  letter,  and  the  name  of  the  person  to  whom  sent,  a«  i^re- 
scribed  in  the  form  hereto  appended. 

"A  quarterly  account-current  boolc,  in  which  shall  be  recorded  the  ac- 
counts of  the  diplomatic  agent  and  the  legation  accounts  for  contin- 
gencies. 

"  When  a  paper  of  any  description  is  entered  or  recorded  in  either  of 
the  said  books,  it  must  be  indexed  by  a  reference  both  to  the  name  of 
the  author  and  the  subject  of  the  i)aper. 

"Instructions  from  the  Department,  and  all  ofhcial  or  business  notes 
to  the  legation,  intended  to  be  permanently  kept  there,  shall  be  indorsed 
with  a  short  note  of  the  contents  and  tiled  (not  folded),  until  a  suflBcient 
number  shall  accumulate  to  lorm  a  volume,  when  they  shall  be  bound. 

"All  diplomatic  agents  are  instructed,  with  a  view  to  facilitate  refer- 
ence to  previous  correspondence,  to  keep  in  their  offices  the  i)rescribed 
registers  of  all  the  documents,  papers,  letters,  and  books  which  have 
been,  or  which  may  be,  at  any  time  received,  and  also  of  those  forwarded 
by  them  on  matters  connected  with  their  ofScial  duties. 

"  The  copied  records  in  the  books  above  prescribed  will  include  pro- 
tocols of  conferences,  notes  of  official  conversations,  copies  of  corre- 
spondence, and  every  memorandum  necessary  to  a  full  understanding 
of  the  history  of  the  mission. 

"  Such  ministers  of  the  United  States  as  by  law  are  not  allowed  a 
secretary  of  legation  will  themselves  keep  up  the  record  of  their  lega- 
tions. Any  such  minister  who  may  neglect  this  duty  will  be  chargeable 
with  the  expense  which  the  Government  may  incur  in  consequence  of 
his  neglect. 

"  The  public  interest,  and  the  convenience  of  official  intercourse 
with  diplomatic  representatives  abroad,  require  that  every  successor 
to  a  mission  should  be  thoroughly  acquainted  with  all  the  directions 
that  may  have  been  given  by  this  Department  to  his  ])redecessors,  and 
all  that  may  have  been  done  by  them  in  their  official  capacity.  It  is 
therefore  the  im[)erative  duty  of  all  diplomatic  agents  to  carefully 
familiarize  themselves  with  the  records  of  their  missions,  and  to  pre- 
serve the  archives  of  their  own  as  well  as  of  preceding  terms  with  the 
utmost  care  for  the  benefit  of  their  successors  in  office." 

Printed  Pers.  Inst.  Dip.  Agents,  188;'). 

By  article  11  of  the  treaty  of  1819  between  the  United  States  and 
Spain,  the  Department  of  State  was  made  the  depository  of  the  records 
and  papers  referred  to  in  the  article.  They  should  not  be  delivered  to 
the  claimants,  and  any  law  of  Congress  which  should  authorize  or  direct 
them  to  be  delivered  up  would  be  a  violation  of  the  treaty. 
2  Op.,  515,  Taney,  1832. 

XXVIII.  RKiHT  OF  I'liOTECTJOX  jyD  ASYLUM. 

§104. 

Under  this  head  the  privileges  of  asylum  of  consuls  as  well  as  of  dip- 
lomatic agents  will  be  considered. 

The  report  of  Mr.  Livingston,  Sec.  of  State,  on  Apr.  2,  1832,  in  regard  to  refuge 
given  in  1831  by  the  United  States  ship  St.  Lonis  to  the  Vice-President 
of  the  Republic  of  Peru  and  General  Miller,  will  be  found  in  House  Ex. 
Doc,  No.  272,  22d  Cong.,  1st  sess. 

674 


CHAP.  IV.]    EIGHT  OP  PROTECTION  AND  ASYLUM.       [§  104. 

The  right  of  diplomatic  asylum  in  revolutionary  times  and  in  revo- 
lutionary countries  should  be  indulgently  construed. 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  Wise,  July  Iti,  1844.     M.'iS.  Inst.,  lirazil. 

"  A  minister  in  a  foreign  country  is  reganled  by  tho  pubUc  law  as 
independent  of  the  local  jurisdiction  within  which  he  resides,  and  re- 
sponsible for  any  offenses  he  may  commit  only  to  his  own  Government. 
The  same  peculiar  character  belongs,  also,  to  his  suite,  his  family,  ami 
the  members  of  his  household,  and  in  whatever  relates  to  himself  or  to 
them  is  extended  even  to  the  mansion  which  he  occupies.  Whether 
its  asylum  can  be  violated  under  any  circumstances,  it  is  unnecessary, 
on  this  occasion,  to  intjuire;  but  there  is  no  doubt  whatever  that,  if  it 
can  be  rightfully  entered  at  all  without  the  consent  of  its  occupant,  it 
can  only  be  so  entered  in  consequence  of  an  order  emanating  from  the 
supreme  authority  of  the  country  in  which  the  minister  resides,  and  for 
which  it  will  be  held  responsible  by  his  Government." 

Mr.  Buclianan,  Sec.  of  State,  to  Mr.  Shields,  Mar.  22,  1848.     MSS.  lust.,  Venez. 

Though  the  privileges  of  asylum  in  Mohammedan  states,  as  well  as 
in  South  America,  are  more  liberally  dispensed  than  in  the  leading 
European  states,  they  should  be  in  all  cases  carefully  guarded. 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  McCauley,  May  31,  1849.  MSS.  Inst.  Barb. 
Powers.  Mr.  Clayton  to  Mr,  Gaines,  Oct.  3,  1849  ;  Mr.  Marcy  to  Mr.  De 
Leon,  Dec.  23,  1853  ;  ibid. 

"  I  was  well  aware  of  the  custom  of  the  representatives  of  Christian 
powers  in  the  Barbary  States  to  extend  the  protection  of  their  flags  over 
many  individuals  who  are  not  citizentf  of  their  respective  countries, 
and  who  cannot  be  properly  considered  as  officials,  such  as  brokers, 
interpreters,  &c.  But  whilst  I  deem  it  the  duty  of  the  consuls  to  pro- 
tect American  citizens,  and  necessary  and  useful  oflicial  persons  con- 
nected with  their  consulates,  they  ought  scrupulously  and  carefully  to 
abstain  from  all  interference  in  behalf  of  individuals  who  are  neither 
citizens  nor  -have  any  rightful  claim  to  our  protection,  and  the  more 
especially  when  such  protection  is  likely  to  bring  the  American  consul 
into  any  kind  of  conflict  with  the  rights  and  prerogatives  of  the  repre- 
sentatives of  friendly  powers." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  McCauley,  Jan.  14,  1850.  MSS.  Inst.  Barb. 
Powers. 

Acquiescence  by  the  Government  of  Chili  on  former  occasions  in  the 
exercise  of  the  hospitality  of  asylum  in  its  larger  sense  may  preclude 
that  GoTernment  from  objecting  to  the  continued  granting  such  hospi- 
tality to  the  same  extent.  At  the  same  time,  if  that  Government  makes 
objection  to  a  granting  of  that  hospitality  to  a  particular  politi('al  refugee, 
the  minister  of  the  United  States,  in  whose  house  such  refugee  is  shel- 
tered, should  advise  him  that  this  shelter  can  no  longer  be  afforded. 
Mr.  Webster,  Sec.  of  State,  to  Mr.  Peyton,  July  2,  1851.     MSS.  Inst.,  ChiU. 

675 


^  104.]  DIPLOMATIC   AGENTS.  [CHAP.  IV 

"  Neither  the  hiw  of  nations  nor  tlie  stipulations  of  our  treaty  with 
Peru  recognize  the  riglit  of  consuls  to  afford  protection  to  those  who 
have  rendered  themselves  obnoxious  to  the  authority  of  the  Govern- 
ment under  which  they  dwell.     *     *     * 

"  The  subsequent  course  of  the  governor,  in  sending  to  the  consulate 
and  arresting  the  insurgents,  cannot  be  condemned  by  this  Government. 
The  national  flag  was  not  insulted,  nor  the  national  dignity  affected, 
by  this  i^roceeding.  The  former  had  been  unwarrantably  used.  Under 
the  treaty  it  would  and  should  have  protected  the  property  of  the  coq- 
sulate  and  the  persons  and  property  of  American  citizens,  but  in  this 
case  no  such  j)lea  for  its  use  can  be  presented.  The  Government  of 
the  United  States  would  not  permit  such  an  abuse  of  a  foreign  flag  by 
a  foreign  consul  to  be  made  with  impunity." 

Mr.  Marcy.  Sec.  of  State,  to  Mr.  Clay,  Jan.  24,  1854..    MSS.  Inst.,  Peru. 

"  This  Government  will  not  consent  that  its  consuls  in  Turkey  shall 
be  denied  any  privileges  in  regard  to  protecting  persons  not  citizens  of 
the  United  States  which  may  be  enjoyed  by  the  consuls  of  other  nations 
who  have  no  special  treaty  stipulations  on  the  subject.  If  custom  in 
Turkey  gives  to  foreign  consuls  the  right  of  protecting  even  Ottoman 
subjects,  it  is  presumed  that  this  right  is  limited  to  such  persons  as 
may  be  absolutely  necessary  for  the  discharge  of  the  consular  func- 
tions, and  must  have  originated  and  be  tolerated  on  account  of  the 
difficulty  of  obtaining  persons,  not  subjects  of  the  Porte,  sufficiently  ac- 
quainted with  the  Oriental  languages.  It  is  obvious,  however,  that  it  is 
the  duty  of  the  consul  to  exercise  this  privilege  with  discretion,  and 
not  to  employ  any  person  for  the  purpose  of  screening  him  from  piose- 
cution  for  offenses  against  the  laws  of  the  country  or  any  one  known 
to  be  reasonably  objectionable  to  the  Government." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  De  Leon,  Auj?.  1(5,  1854.  MSS.  Inst.,  Barb. 
Powers.  To  the  same  effect  see  letter  of  Mr.  Seward,  Sec.  of  State,  to  ilr. 
Hale,  Dec.  11, 1866,  ibid.;  Mr.  Fish,  Sec.  of  State,  to  Mr.  Beardsley,  Mar.  31, 
1873,  ibid.  ;  Mr.Fish  to  Mr.  Jones,  Nov.  16,  1876.  See  also  circular  of  May 
1,  1871 ;  Mr.  Evarts  to  Mr.  Mathews,  Mar.  13, 1880,  iUd. 

A  consul  of  the  United  States  in  Nicaragua  has  no  right,  as  such, 
''  under  the  law  of  nations  to  make  his  dwelling  an  asylum  for  persons 
charged  with  crimes  or  offenses  against  that  Government." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Wheeler,  May  11,  1855.     MSS.  Inst.,  Am.  St. 

Violent  entrance  in  a  consul's  house  by  soldiers,  and  misconduct 
therein,  constitute  an  international  wrong,  for  which  the  Government 
commissioning  such  consul  is  entitled  to  demand  redress. 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Bigler,  June  17, 1859 ;  Aug.  16, 1859  ;  May  1, 1860. 
MSS.  Inst.,  Chili. 

During  an  insurrection  in  Valparaiso,  early  in  1859,  Mr.  Trevitt,  con- 
sul of  the  United  States,  received  into  his  house  as  an  asylum  certain 
political  refugees.    His  house  was  subsequently  attacked  by  Chilian 
676 


CHAP.  IV.]  RIGHT    OF    PROTECTION    AND    ASYLUM.  [§  104 

soldiery,  the  surrender  of  the  refugees  effected,  and  his  exequatur 
recalled  by  the  Chilian  Government.  Mr.  Bigler,  United  States  minis- 
ter at  Chili,  when  reporting  these  facts,  informed  the  Secretary  of  State 
that  "  the  English  consul  at  Talcahuano  had  recently  given  asylum  to 
a  certain  number  of  refugees  under  circumstances  similar  to  those  under 
which  Consul  Trevitt  had  acted  at  Vali)araiso,  but  that  the  Chilian  Gov- 
ernment had  manifested  no  dissatisfaction  with  his  conduct."  •  •  • 
Information  was  also  given  "that  the  practice  on  the  part  of  consuls 
extending  asylum  to  political  refugees  is  almost  generally  permitted  in 
the  Pacific  Republics,  and  in  none  more  frequently  than  in  Chili."  Mr. 
Cass,  Secretary  of  State,  then  instructed  Mr.  Bigler  that  "  if  this  be  so, 
the  existence  of  such  an  usage,  taken  in  connection  with  the  statement 
you  make  in  regard  to  the  English  consul,  would  go  far  to  induce  this 
Government  to  require  the  restoration  of  Mr.  Trevitt's  exequatur." 

Mr.  Cass  to  Mr.  Bigler,  Juno  17,  18')9.  MSS.  lust.  Chili.  See  Mr.  Cass  to  Mr. 
Bigler,  Aug.  l(i,  18o9,  on  the  refusal  of  the  Chilian  Government  to  recall  the 
exequatur. 

"All  Christian  nations  refuse  to  the  Government  of  Morocco  any  right, 
power,  or  control  whatever,  in  any  circumstances,  over  the  persons  or 
property  of  Christians,  or  Franks,  as  they  are  called,  residing  in  that 
Empire." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  McMath,  Api-.  28,  1862.  MSS.  lost..  Barb. 
Powers. 

"  Every  citizen  of  the  United  States  is  required,  when  in  Morocco,  to 
seek  from  the  consul  and  have  a  certificate  showing  that  he  is  under 
the  consul's  protection.  Failing  to  obtain  this  he  has  no  right  by  law 
to  remain  there." 

Ihid. 

"  The  President  hears  with  surjmse  and  regret  rumors  of  abuses  of 

the  privilege  of  granting  protections  committed  by  persons  vicariously 

exercisin"  eonsuhir  functions  in  behalf  of  this  Government  within  Ilis 
*  ...» 

Imperial  Majesty's  dominions.     Eecent  improvements  of  adninnstration 

present  some  grounds  for  believing  that  that  privilege  might  now  bo 
relinciuished  without  serious  prejudice  to  the  interests  of  the  United 
States  It  is  not  supposed,  however,  that  in  the  event  of  eitlier  a  radi- 
cal change  of  administration,  or  of  the  occurrcjice  of  religious  or  other 
domestic  disturbance  in  the  capital  or  the  provinces,  the  right  of  grant- 
ing protections  as  heretofore  exercised  would  be  found  indispensable 
to  the  safety  of  citizens  sojourning  in  Turkey.  In  view  of  these  oppos- 
ing considerations  the  President  has  determined  that  you  may  announce 
to  the  minister  for  foreign  atfairs  that  the  ]t()werof  the  ministers  and  of 
consuls  to  grant  protection  will,  until  further  notice,  be  restrained  so  as 
to  allow  them  to  issue  only  to  persons  in  the  actual  service  of  the  United 
States.    This  restriction  will  not  be  deemed  to  have  any  bearing  upon 

677 


§  104.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

passports  to  American  citizens  granted  by  this  Department  or  other 
proper  authority." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Morris,  Sept.  19,  1864.     MSS.  Inst.,  Turkey. 

"  1.  Consuls  may  harbor  political  refugees,  but  as  the  law  of  nations 
confers  upon  them  no  right  to  do  this,  and  as  the  treaty  between  the 
United  States  and  Hayti  is  silent  upon  the  subject,  no  sufiBcient  cause 
of  complaint  would  arise  if  refugees  so  harbored  were  to  be  taken  by 
the  local  authorities  from  the  consular  abode. 

"  2.  The  local  authorities  have  an  abstract  right  to  forbid  the  employ- 
ment of  a  foreign  naval  force  to  protect  the  houses  of  consuls,  even  in 
emergencies  such  as  those  to  which  you  refer.  That  employment  may, 
however,  be  justifiable  under  circumstances  similar  to  those  which  are 
reported  at  Cape  Haytien. 

"3.  Strictly  speaking,  the  consular  flag  can  only  be  properly  dis- 
played over  the  residence  of  the  consul  himself.  If,  however,  he  should 
think  proper  to  fly  it  elsewhere,  with  a  view  to  protect  the  property  of 
his  countrymen,  or  property  in  which  they  may  be  interested,  he  must 
do  this  at  the  risk  of  having  that  emblem  disregarded  by  the  foreign 
authorities.  This  Department  cannot  authorize  or  direct  any  such  use 
of  the  flag  of  the  United  States,  but  will  not  censure  it  unless  the  act 
should  formally  be  complained  of  by  the  foreign  Government." 

Mr.  Hunter,  Acting  Sec.  of  State,  to  Mr.  Peck,  Oct.  4,  186.5.    MSS.  Inst.,  Hayti. 

"Your  painfully  interesting  dispatch  of  the  8th  of  May,  No.  3,  has 
been  received.  The  lawless  condition  of  society  in  Hayti  which  you 
describe  is  a  subject  of  grave  concern  and  deep  regret.  The  proceed- 
ings by  which  you  remonstrated  and  reasoned  with  the  Government  in 
the  interest  of  public  peace  and  safety  at  Port  au  Prince  are  approved. 
The  Secretary  of  the  Navy,  on  receiving  the  first  intimation  of  the 
extreme  revolutionary  disturbances  in  Hayti,  took  the  necessary  meas- 
ures for  the  dispatch  of  a  ship  of  war  to  Port  au  Prince,  to  be  emjiloyed, 
i^  necessary,  for  the  protection  of  the  lives  and  property  of  citizens  of 
the  United  States. 

"You  request  an  instruction  on  the  subject  of  the  continuance  of  the 
exercise  of  the  right  of  asylum  by  the  legation.  The  question  is  at- 
tended with  much  embarrassment.  The  right  of  a  foreign  legation  to 
afibrd  an  asylum  to  political  refugees  is  not  recognized  by  the  law  of 
nations  as  applicable  to  civilized  or  constitutionally  organized  states. 
It  is  a  practice,  however,  which,  from  the  necessity  of  the  case,  is  ex- 
ercised to  a  greater  or  less  extent  by  every  civilized  state  in  regard  to 
barbarous  or  semi-barbarous  countries.  The  revolutionary  condition 
seemed  to  become  chronic  in  many  of  the  South  American  nations  after 
thf'v  had  achieved  their  independence,  and  the  United  States,  as  well 
as  1  he  European  nations,  recognized  aud  maintained  the  right  of  asylum 
in  their  intercourse  with  those  Kepublics.  We  have,  however,  con- 
stantly employed  our  influence,  for  several  years,  to  meliorate  and  im- 
678 


CHAP.  IV.]    RIGHT  OF  PROTECTION  AND  ASYLUM.       [§  104. 

l)iovc  the  political  situation  in  these  Republics,  with  an  earnest  desire 
to  reliu(|uish  the  right  of  asylum  there.  In  the  year  18G7  we  formally 
relin<iuishe(l  and  renounced  that  right  in  the  Kepublic  of  Peru.  This 
(rovernment  has  also  largely  modified  the  exercise  of  that  right  among 
some  of  the  Oi'iental  nations. 

''Thus  we  are  prei)ared  to  accept  the  opinion  you  liave  deliberately 
expressed  that  it  is  no  longer  expedient  to  practice  the  right  of  asylum 
m  the  Haytien  Kepublic.  Nevertheless,  we  should  not  be  willing  to 
lelinquish  the  right  abruptly,  and  in  the  midst  of  the  anarchy  wliieh 
seems  to  be  now  prevailing  in  Hayti,  in  the  absence  of  matured  convic- 
tions on  your  part.  Xor  do  we  think  it  expedient  that  it  should  be 
renounced  by  the  United  States  legation  any  sooner  or  in  any  greater 
degree  than  it  Is  renounced  by  the  legations  of  the  other  important 
neutral  powers.  With  these  reservations,  the  subject  is  confidently 
left  to  your  own  discreet  judgment." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  HoUister,  May  26,  1868.     MSS.  lunt.  Hayti; 
Dip.  Corr.,  1868. 

"The  immunities  of  an  ambassador  are  not  of  a  personal  character. 
They  belong  to  the  Government  of  which  he  is  the  representative.  It 
is  to  be  regretted,  therefore,  that  you  treated  the  invasion  of  your  house 
and  the  arrest  therein  of  your  servants  as  a  personal  offense,  to  be 
atoned  for  by  the  simple  release  of  the  persons  arrested,  and  a  i)rivate 
note  expressive  of  regret. 

"This  act,  especially  when  regarded  in  connection  with  a  recent 
invasion  of  the  commercial  agency  at  St.  Marc,  and  other  acts  of  dis- 
respect, and  of  neglect  of  diplomatic  and  international  courtesies,  is 
significant  of  an  intent  which  should  have  elicited  from  you  a  more 
emphatic  protest  than  your  unofficial  communication  to  the  Secretary 
of  State,  and  a  demand  for  more  decided  redress  than  that  which  you 
were  content  to  accept." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  March  26,  1873.     MSS.  Inst.  Hayti ;  For. 
Rel.,  1873. 

"Your  dispatches,  numbered  3G4  and  305,  of  the  Stli  and  VMh  ultimo, 
respectively,  have  been  received.  They  relate  to  the  recent  disturb- 
ances at  Port  au  Prince,  and  to  persons  who  have  sought  an  asylum 
in  the  legation.  It  is  regretted  that  you  deemed  yourself  just  ified  by  au 
impulse  of  humanity  to  grant  such  an  asylum.  You  have  repeatedly 
been  instructed  that  such  a  practice  has  no  basis  in  public  law,  and,  i>o 
far  as  this  Government  is  concenu'd,  is  believed  to  be  contrary  to  all 
sound  policy.  The  course  of  the  diplomatic  representatives  of  other 
countries  in  receiving  political  refugees  upon  such  occasions  is  not 
deemed  sufiticient  to  warrant  this  Government  in  sanctioning  a  simiUir 
step  on  the  part  of  the  representatives  of  the  United  States.  Among 
other  objections  to  granting  such  an  asylum  it  may  be  remarked  that 
that  act  obviously  tends  so  lar  to  incite  conspiracies  against  Govern- 

679 


§  104.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

inents,  tbat  if  persons  charged  with  offenses  can  be  sure  of  being 
screened  in  a  foreign  legation  from  arrest  thej^  will  be  much  more  apt 
to  attempt  the  overthrow  of  authority  than  if  such  a  place  of  refuge 
were  not  open  to  them. 

"Mr.  Preston  has  been  here  by  order  of  his  Government  to  ask  that 
you  may  be  directed  to  set  at  large  the  refugees  who  have  sought  your 
protection.  I  answered  him,  however,  that  though  it  might  have  been 
preferable  that  you  should  not  have  received  those  persons,  it  was  not 
deemed  expedient  to  comply  with  his  request.  I  added  that  if  his 
Government  would  apply  to  you  for  them,  in  order  that  they  might  be 
tried,  you  would  be  authorized  to  give  them  up,  provided  the  Govern- 
ment gives  you  its  assurance  that  no  punishment  shall  result  from  the 
trial,  but  that,  if  convicted,  the  parties  will  be  allowed,  without  moles- 
tation, to  leave  the  country.  If,  too,  the  persons  who  are  with  you 
should  themselves  or  through  you  offer  to  surrender  to  the  authorities 
on  the  same  condition,  and  should  it  be  acceptable,  you  will  dismiss 
them." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  June  4,  1875.     MSS.  Inst.  Hayti ;  For. 
Eel.,  1875. 

'^The  undersigned.  Secretary  of  State  of  the  United  States,  has  the 
honor  to  acknowledge  the  receipt  of  the  note  of  the  25th  instant  ad- 
dressed to  this  Department  by  Mr.  Preston,  the  minister  plenipoten- 
tiary of  Hayti.  It  refers  to  a  recent  conversation  between  him  and  the 
undersigned  upon  the  subject  of  certain  Haytians  to  whom  Mr.  Bassett, 
the  United  States  minister  at  Port  au  Prince,  had  granted  an  asylum 
in  his  legation.  As  a  result  of  that  conference,  an  instruction  was  at 
once  addressed  by  this  Department  to  Mr.  Bassett,  on  grounds  which 
were  orally  indicated  by  the  undersigned  to  Mr.  Preston.  Too  short  a 
time,  however,  has  since  elapsed  for  Mr.  Bassett  to  have  carried  those 
instructions  into  effect  and  to  have  reported  to  this  Department  upon 
the  subject. 

"The  undersigned  acknowledges  that  it  is  desirable  that  the  question 
which  has  been  raised  by  the  course  of  Mr.  Bassett  should  be  promptly 
and  satisfactorily  settled. 

"  The  undersigned  is,  however,  not  a  little  surprised  at  that  part  of 
Mr.  Preston's  note  in  which  he  represents  that  the  undersigned  had 
given  him  assurances  that  no  United  States  men-of-war  would  be  or- 
dered into  Haytian  waters.  The  undersigned  is  sure  that  he  neither 
made  any  such  promise  nor  used  words  which  could  fairlj-  be  construed 
as  a  pledge  of  the  kind.  Pursuant  to  general  orders,  naval  vessels  of 
the  United  States  sometimes  touch  at  ports  where  the  lives  and  property 
of  citizens  may  be  supposed  to  be  in  peril.  If  any  have  recently  visited 
the  harbors  of  Hayti,  the  undersigned  is  not  aware  that  they  have  been 
specially  ordered  thither." 

Mr.  Fish,  Sec.  of  State,  to  Mr.   PrestoD,  June  29,  1875.     MSS.  Notes,  Hayti ; 
For.  Kel.,  1875. 

680 


CHAP.  I  V.J    RIGHT  OF  PROTECTION  AND  ASYLUM.        [§  104. 

"  I  transmit  a  copy  of  a  uote  of  the  25tli  ultimo,  addressed  to  tliis 
De])artiiient  by  Mr,  Preston,  the  minister  of  Ilayti  accn-ditcd  to  this 
Government.  It  relates  to  the  asylum  wliieh  you  tliouj;ht  projjer  to 
grant  to  political  refugees  in  that  country,  and  represents  that  you  liiid 
not  complied  with  a  request  which  had  been  made  of  you  by  the  (lov- 
ernment  to  furnish  it  with  a  list  of  them.  It  also  says  that  some  of  them 
were  received  at  your  legation  with  arms  and  ammunition.  As  your 
dispatches  have  been  silent  upon  these  points,  an  ex])lanation  in  regard 
to  them  will  be  desirable. 

"  It  is  presumed  that  the  decisive  course  which  you  have  thought 
proper  to  adopt  in  regard  to  the  refugees  adverted  to  has  been  taken  in 
full  view  of  your  accountability  not  only  to  your  own  Government,  but 
to  that  to  which  you  are  accredited.  Whatever  may  be  our  dis])Osition 
to  receive  reasons  to  palliate  or  justify  your  proceedings,  it  is  still  in  the 
power  of  the  Haytian  Government  to  refuse  to  be  satisfied  with  them. 
This  is  a  consideration  which  should  always  be  borne  in  mind  by  a  dij)- 
lomatic  agent.  While  he  should  not  allow  it  to  att'ect  his  sense  of  duty, 
he  should  be  well  aware  of  the  consequence  which  may  attend  its  con- 
scientious discharge." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Bassett,  July  1,  1875.     MSS.  lust.,  Hiiyti  ;  For. 
Rel.,  1875. 

"  You  are  aware  that  Mr.  Bassett,  the  minister  resident  of  the  United 
States  at  Port  au  Prince,  has  thought  proper  to  receive  into  his  otlicial 
residence  certain  political  refugees.  This  act  on  his  part  has  not  been 
approved  by  this  Department,  as  it  is  not  sanctioned  by  public  law, 
though  it  is  in  conformity  with  precedents  in  that  quarter.  The  fact, 
however,  that  Mr.  Bassett  should  have  thought  proper  to  take  the  re- 
sponsibility of  harboring  the  persons  referred  to,  contrary  to  the  wishes 
not  only  of  his  own  Government,  but  to  those  also  of  that  to  which  he 
is  accredited,  is  not  conceived  to  forfeit  his  right  not  only  to  protection 
from  violence,  but  also  to  a  continuance  of  those  observances  which  are 
due  to  the  diplomatic  representative  of  a  friendly  nation.  I  regret  to 
state,  however,  that,  according  to  Mr.  Bassett's  reports  to  this  Depart- 
ment, those  observances  have,  in  respect  to  him  and  to  his  legation,  been 
signally  disregarded.  lie  states  that  his  abode  is  encompassed  by  an 
armed  force,  and  that  during  the  night  especially  persons  in  his  neigh- 
borhood keep  shouting,  apparently  on  puri)ose,  to  a  degree  whi^h  makes 
it  impossible  fer  him  or  his  family  to  obtain  necessary  rest.  It  cannot 
be  believed  that  these  annoyances  are  instigated  by  the  Haytian  Gov- 
ernment, and  perhaps  it  may  not  be  aware  that  they  are  practiced. 
However  this  may  be,  it  is  expected  that  tb<\  will  at  once  be  discon- 
tinued. If  this  exi)ectation  should  be  <lisai)pointed,  it  will  be  regarded 
as  an  unfriendly  proceeding  on  the  part  of  tlie  Haytian  (loveinment. 
Indeed,  the  demonstrations  adverted  toand  all  the  circumstances  make 
it  advisable,  in  the  opinion  of  the  President,  that  a  United  States  mau- 

681 


§  104,]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

of-war  should  visit  Port  au  Prince.    The  Secretary  of  the  Navy  will 
consequently  be  requested  to  order  one  thither." 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Prestou,  Aug.  G,  187.5.    MSS.  Notes, 
Hayti;  For.  Eel.,  1875. 

"  It  is  noticed  that  Mr.  Preston  has  thought  proper,  in  that  commu- 
nication, to  characterize  the  sanctuary  which  the  minister  of  the  United 
States  in  Hayti  has  thought  proper  to  extend  to  certain  citizens  of  that 
country  as  an  act  performed  pursuant  to  a  'pretended  right.  As  similar 
acts  have  often  been  exercised  by  the  representatives  of  other  powers, 
as  well  as  by  that  of  the  United  States,  with  the  acquiescence  of  Hayti, 
the  epithet  referred  to  may  be  considered  as  superfluous. 

"  The  undersigned  also  regrets  to  notice  a  disposition  on  the  part  of 
Mr.  Preston  to  draw  an  inference  from  the  views  which  this  Department 
has  expressed  on  the  general  subject  which  will  at  least  tend  to  restrict 
the  course  which  the  Department  may  think  proper  to  adopt  in  regard 
to  it.    No  such  inference  can  be  assented  to. 

"  It  is  quite  probable,  however,  that,  when  the  present  case  shall  have 
been  satisfactorily  adjusted,  this  Department  may  be  disposed  to  re- 
ceive and  consider  any  proposition  which  Hayti  may  make,  looking  to 
the  abolition,  by  the  several  Governments  represented  in  that  country, 
of  the  practice  of  granting  an  asylum  to  refugees  in  their  resj)ective 
legations.  The  United  States  cannot,  for  the  present  at  least,  sepa- 
ratelj %  even  by  implication,  engage  to  treat  upon  the  subject. 

"  The  undersigned  also  regrets  to  observe  that  Mr.  Preston  mistakes 
the  terms  upon  which,  as  he  was  informed,  Mr.  Bassett  had  been  author- 
ized to  surrender  the  refugees  in  his  residence. 

"The  only  condition  upon  which  Mr.  Bassett  was  authorized  to  make 
that  surrender  was,  that  the  Haytian  Government  should  stipulate  not 
to  punish  the  refugees,  if,  after  trial,  they  should  be  convicted  of  any 
offense,  but  should,  of  its  own  accord,  allow  them  to  leave  the  country, 
and  should  furnish  them  with  passports  for  that  purpose.  This  condi- 
tion did  not  imply  any  necessity  for  the  exercise  of  the  right  of  pardon, 
to  which  Mr.  Preston  refers  in  his  note.  Indeed,  the  proposition  as 
stated  by  that  gentleman,  would,  it  is  conceived,  involve  not  only  an 
abandonment  of  the  question  of  asylum,  but  practically  an  assent  to  its 
violation. 

"The  United  States  cannot  consent  to  this.  The  proposition  author- 
ized through  Mr.  Bassett  was  based  upon  the  principle  of  deferring  to 
the  dignity  of  Hayti  by  acknowledging  her  right  to  try  the  refugees,  but 
also  of  maintaining  the  inviolability  of  the  asylum  so  long  as  it  should 
generally  be  tolerated. 

"  If  the  proposition  adverted  to  should,  in  its  spirit  and  its  terms,  be 
accepted  by  Hayti,  the  unpleasant  question  to  which  it  relates  may  be 
promptly  and  satisfactorily-  settled." 

Mr.   Cadwalader,   Acting  Sec.  of  State,  to  Mr.  Preston.  Aug.  17,  1875.      MSS. 
Notes,  Hayti  ;  For.  Rel.,  1875. 

682 


CHAP.  IV.]    EIGHT  OF  PROTECTION  AND  ASYLUM.       [§  104. 

"  Your  dispatches  to  No.  389  Lave  been  received.  Tliey  convey  the 
unwelcome  information  that  the  question  in  regard  to  Boisrond  Canal 
and  the  other  refugees  at  your  residence  was  still  unadjusted.  The 
hope  was  entertained  that  the  conditions  upon  which,  l»y  the  instruc- 
tion No.  227  of  the  4th  of  June  last,  you  were  authorized  to  termi- 
nate the  asylum  which  had  been  granted  to  those  persons,  would  have 
been  complied  with.  Those  conditions  were  that  if  the  Haytian  (Govern- 
ment should  apply  to  you  for  tliem  in  order  that  they  might  be  tried, 
you  would  be  authorized  to  give  them  up,  provided  that  Government 
would  engage  that  no  punishment  should  result  from  the  trial,  but  that 
if  convicted  they  should  leave  the  country.  Or  if  those  ixmsoiis  should 
themselves,  or  through  you,  offer  to  surrender  to  the  authorities  on  the 
same  conditions,  you  were  to  dismiss  them.  It  does  not  appear  from 
your  dispatches  that  that  Government  had  made  such  an  application, 
or  that  it  had  been  made  by  you.  This  leaves  the  subject  in  a  very  un- 
satisfactory state,  and  one  by  no  means  tending  to  strengthen  those 
frieudly  relations  between  the  two  Governments  which  it  is  desirable  to 
maintain.  The  irritation  of  the  Haytian  Government  in  regard  to  the 
matter  is  shown  in  the  recent  notes  of  Mr.  Preston,  a  copy  of  \a  hich  (and 
of  the  answers  of  the  Department)  is  inclosed.  It  is  obviously  the  i)ur- 
pose  of  that  Government,  probably  actuated  by  the  impression  that  the 
right  of  asylum  in  the  abstract  is  not  favored  by  this  Govermnent,  to 
endeavor  to  have  you  directed  to  surrender  the  refugees  unconditionally. 
This  purpose  has  not  been  and  will  not  be  accomplished.  Still  the  im- 
pression here  is  strong  that  in  receiving  Mr.  Boisrond  Canal,  especially 
under  the  circumstances,  you  allowed  your  partialities  for  that  individ- 
ual, as  well  as  your  general  feelings  of  humanity,  to  overcome  that  dis- 
cretion which,  pursuant  to  the  instruction  to  you,  No.  32,  of  the  4th  of 
February,  1870,  you  were  expected  to  exercise  in  every  case  where  an 
asylum  might  be  granted  to  political  refugees.  The  Department  will 
not  take  into  consideration  the  antecedents  of  Mr.  lloisrond  Canal.  It 
is  also  bound  to  disregard  the  complaints  of  the  existing  Uaytiau  Ad- 
ministration against  him,  or  the  reasons  therefor.  U\  however,  as  is 
understood  to  be  the  case,  that  person  had  actually  been  tried  and  sen- 
tenced for  conspiracy  before  he  sought  refuge  in  your  abode,  he  nuist 
have  gone  thither  to  escape  punishment  and  arrest.  It  is  also  under- 
stood that  he  and  his  companions,  while  on  their  way  thither,  resisted 
arrest  by  force  of  arms.  These  circumstances  certainly  present  a  case 
in  which  it  would  be  unreasonable  to  expect  that  GoveinnuMit  to  ac- 
quiesce in  the  privilege  of  sanctuary  granted  by  you  to  Boisrond  C;anal. 
Consequently  that  step  on  your  part  cannot  be  approved.  Still  there 
is  no  disposition  to  change  the  conditions  upon  which  you  have  been 
authorized  to  surrender  the  refugees,  except  so  far  as  this  may  be  made 
necessary  by  the  fact  that  Boisrond  Canal  had  actually  been  tried  and 
sentenced  before  he  sought  an  asylum.  It  is  ])rcsunicd  that  if  he  were 
at  large  he  would  not  be  tried  again,  though  the  sentence  already  passed 

683 


§  104  ]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

might  be  carried  into  eifect.  If  therefore  that  Government  should  allow 
him  and  the  others  to  be  embarked  for  a  foreign  port,  under  your  super- 
vision, the  case  might  thereby  be  settled. 

"  It  is  presumed  that  the  embarkation  might  take  place  by  the  con- 
nivance of  the  Government  without  any  change  of  the  sentence,  or  that, 
if  necessary,  the  sentence  might  be  repealed  or  so  modified  that  the 
embarkation  might  be  carried  into  effect  without  hazard  or  injury  to 
the  interests  of  the  Government.  That  a  proper  disposition  to  this  end 
should  be  entertained  is  much  to  be  desired." 

Mr.  Hunter,  Acting  Sec.  of  State,  to  Mr.  Bassett,  Aug.  26,  1875.    MSS.  Inst., 
Hayti ;  For.  Eel.,  1875. 

"  The  undersigned.  Acting  Secretary  of  State  of  the  United  States, 
has  the  honor  to  acknowledge  the  receipt  of  the  note  of  Mr.  Stephen 
Preston,  envoy  extraordinary  and  minister  plenipotentiary  of  the  Re- 
public of  Hayti,  of  the  26th  of  August  last,  relative  to  the  asylum 
granted  by  Mr.  Bassett,  minister  resident  of  the  United  States  at  Port 
an  Prince,  to  certain  refugees. 

"  The  undersigned  regrets  that  Mr.  Preston  does  not  deem  himself 
warranted  in  recommending  to  his  Government  the  acceptance  of  the 
proposition  on  this  subject  contained  in  Mr.  Cadwalader's  note  to  him 
of  the  17th  ultimo.  That  proposition  was  believed  to  have  been  as  just 
to  the  rights  of  all  parties  as  the  circumstances,  fairly  considered,  would 
justify.  Mr.  Preston  urges  as  a  principal  objection  that,  by  a  decree  of 
the  President  of  Hayti,  bearing  date  the  2d  of  May  last,  Boisroud 
Canal,  one  of  the  chief  personages  under  the  protection  of  Mr.  Bassett, 
was  declared  an  outlaw,  and  that  he  did  not  seek  refuge  with  Mr.  Bas- 
sett until  the  next  day.  The  decree  adverted  to  may,  as  Mr.  Preston 
says,  have  been  issued  pursuant  to  the  constitution  of  Hayti.  It  can 
scarcely,  however,  be  regarded  as  the  result  of  any  other  than  a  mili- 
tary trial ;  and  this  in  the  absence  of  the  accused,  if,  indeed,  any  trial, 
even  of  that  character  took  place. 

"  Mr.  Preston  offers,  at  the  close  of  his  note,  a  counter  proposition  as 
a  substitute  for  that  of  Mr.  Cadwalader.  It  is,  that  if  Boisroud  Canal 
and  the  other  refugees  to  be  given  up  to  the  proper  Haytian  authori- 
ties, the  Government  of  Hayti  will  commute  the  penalty  denounced  by 
the  decree  of  the  2d  May  last,  to  simple  banishment ;  and  that  the  ref- 
ugees might  then  at  once  be  embarked. 

"The  undersigned  is  not  sure  that  he  fully  understands  this  propo- 
sition of  Mr.  Preston.  If,  however,  it  be  in  substance  that  if  the  refu- 
gees be  given  up  the  Haytian  Government  will  engage  that  they  shall 
be  subjected  to  no  further  trial  or  sentence,  but  that  the  President  of 
Hayti  will  grant  them  amnesty,  and  will  allow  them  to  embark  without 
molestation,  on  a  stipulation  or  understanding  that  they  are  not  to  re- 
turn to  Hayti  without  permission,  and  that,  if  they  do  so  return,  they 
may  be  held  for  trial  and  punishment,  Mr.  Bassett  will  at  once  be  in- 
684 


CHAP.  IV.]  RIGHT    OF    PROTECTION    AN1>    ASYLUM.  [§  104. 

structed  to  this  eflect.  It  is  liojx-ii,  lljcit'lon',  lliaf  liijs  inicipn-riitioii 
of  Mr.  Preston's  ofier  may  be  roinid  correct:  tliat  lie  will  coiiiiucikI  it 
to  his  Governuient;  that  it  will  l)e  accepted,  and  tliat  this  mii)lcasant 
question  may  thus  be  settled  to  the  satisfaction  of  rhc  i.artics  without 
weakening  the  good  understanding  which  it  is  believed  to  be  their  in- 
terest to  maintain." 

Mr.  HuntfT,  Acting  Sec.  of  State,  to  Mr.  Preston,  Sept.  10.  187'..     MSS.  Notes, 
Hayti;  For.  Rel.,  1675. 

"The  undersigned,  Secretary  of  State  of  the  United  States,  has  the 
honor  to  acknowledge  the  receipt  of  the  note  of  Mr.  Preston,  envoy 
extraordinary  and  minister  plenipotentiary  of  the  Republic  of  flayti,  of 
this  date.  It  relates  to  the  political  refugees  who,  for  .some  time  jtast, 
have  been  in  the  residence  of  Mr.  Bassett,  the  minister  resident  of  the 
United  States  at  Port  au  Prince. 

"  It  is  to  be  regretted  that  the  embarrassing  question  which  has  arisen 
upon  the  subject  should  not  have  been  sooner  adjusted  to  the  nnitual 
satisfaction  of  the  parties. 

"The  undersigned  is,  however,  under  the  impression  that  the  terms 
of  adjustment  offered  in  Mr.  Preston's  note  maybe  regarded  as  accept- 
able. Mr.  Bassett  will  be  instructed  accordingly,  and  the  Navy  De- 
partment will  be  apprised  that  at  i)resent  there  is  no  further  occasion 
for  a  man-of-war  to  visit  Hayti." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Preston,  Sept.  '27, 1875.     MSS.  Notes,  Hayti ;  For. 
Rel.,  1875. 

It  is  mutually  agreed  between  Hamilton  Fish,  Secretary  of  State,  and 
Stephen  Preston,  envoy  extraordinary  and  minister  ])leni])Otentiary  of 
Hayti,  that  certain  political  refugees  who,  for  some  time  i)ast,  have  had 
au  asylum  in  the  residence  of  Mr.  Bassett,  the  minister  resident  of  the 
United  States  at  Port  au  Prince,  shall  receive  from  the  Ilaytian  CJov- 
ernment  a  full  amnesty  for  all  offenses  up  to  the  time  of  their  departure 
from  the  island ;  that  Mr.  Bassett  shall  give  them  up;  that  they  shall 
be  placed  on  board  a  vessel  bound  to  some  other  country  ;  that  on  their 
way  to  the  vessel  they  shall  be  escorted  by  a  Haytian  military  force, 
and  that  Mr.  Bassett  may  also  accompany  them  to  the  vessel.  It  is  to 
be  understood,  however,  that  the  said  refugees,  or  any  of  them,  shall  not 
return  to  Hayti  without  the  permission  of  the  (Jovernment  of  that 
Republic. 

HAMILTON  FISH, 

Secrcidni  of  State. 

stp:phen  PREsiox, 

^nvoij  Extraordinary  and  Minister  Plenipofentiari/  dUIayti. 
Agreement  signed  September  27,1875  ;  For.  Rel.,  1875. 

"The right  of  asylum,  by  which  I  now  refer  to  the  so-called  right  of 
a  political  refugee  to  immunity  and  protection  within  a  foreign  lega- 
tion or  consulate,  is  believed  to  have  no  good  reason  for  its  continuance, 
to  be  mischievous  in  its  tendencies,  ami  to  tend  to  political  disorder. 

"  These  views  have  been  frequently  expressed,  and,  while  this  Gov- 
ernment is  not  able  of  itself  to  do  away  with  the  practice  in  foreign 

685 


§  104.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

countries,  it  lias  uot  failed,  on  appropriate  occasion,  to  deprecate  its 
existence  and  to  instruct  its  representatives  to  avoid  couimittiug  this 
Government  thereto. 

"  Upon  a  recent  occasion,  occurring  in  the  island  of  Hayti,  where,  as 
represented  to  this  Department,  the  asylum  was  forced  upon  the  min- 
ister, the  Department  found  it  necessary  to  give  a  renewed  and  em- 
phatic expression  to  these  views. 

"  Such  being  the  case,  it  is  deemed  fortunate  that  Mr.  Castro  was  not 
compelled  to  avail  himself  of  the  offer  you  had  made." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cashing,  Oct.  1,  1875.     MSS.  lust.,  Spain. 

"  The  frequency  of  resort  in  Spain  to  the  legations  for  refuge,  and 
the  fact  mentioned  by  you  that  nobody  there  disputes  the  claim  of 
asylum,  but  that  it  has  become,  as  it  were,  the  common  law  of  the  land, 
may  be  accounted  for  by  the  prevalence  of  '  conspiracy  as  a  means  of 
changing  a  cabinet  or  a  government,'  and  the  continued  tolerance  of  the 
usage  is  an  encouragement  of  this  tendency  to  conspiracy. 

"  It  is  an  annoyance  and  embarrassment,  probably,  to  the  ministers 
whose  legations  are  thus  used,  but  certainly  to  the  Governments  of 
those  ministers,  and,  as  facilitating  and  encouraging  chronic  conspiracy 
and  rebellion,  it  is  wrong  to  the  Government  and  to  the  people  where 
it  is  practiced — a  wrong  to  the  people,  even  though  the  ministry  of  the 
time  may  not  remonstrate,  looking  to  the  possibility  of  finding  a  con- 
venient shelter  when  their  own  day  of  reckoning  and  of  flight  may 
come." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cushiug,  Oct.  5,  1875.     MSS.  Inst.,  Spain. 

"  The  right  to  grant  asj'lum  to  fugitives  is  one  of  the  still  open  ques- 
tions of  public  law.  The  practice,  however,  has  been  to  tolerate  the 
exercise  of  that  right,  not  only  in  American  countries  of  Spanish  origin, 
but  in  Spain  itself,  as  well  as  in  Hayti.  This  practice,  however,  has 
never  addressed  itself  to  the  full  favor  of  this  Government.  In  with- 
holding approval  of  it,  we  have  been  actuated  by  respect  for  consistency. 

"It  is  not  probable  that  the  practice  would  ever  be  attempted  in  this 
country,  or,  if  attempted,  could  be  tolerated,  and  the  discountenance 
which  the  United  States  extends  to  the  practice  is  upon  the  principle  of 
doing  to  others  as  we  would  they  should  do  unto  us,  so  that  when  we 
acknowledge  the  sovereignty  of  a  foreign  state  by  concluding  treaties 
with  and  by  accrediting  diplomatic  ofl&cers  to  its  Government,  we  im- 
pliedly, at  least,  acknowledge  it  as  a  political  equal,  and  we  claim  to 
extend  to  all  the  political  prerogatives  and  immunities  which  we  maj' 
claim  for  ourselves. 

"  We  sincerely  desire  that  it  may  be  universally  recognized  that  for- 
eign legations  shall  nowhere  be  made  a  harbor  for  persons  either  charged 
with  crimes  or  who  ma3'  fear  that  such  a  charge  may  be  made. 

"  Prominent  among  the  reasons  for  olyection  on  our  part  to  giving 
asylum  in  a  legation,  especially  in  the  Governments  to  the  south  of  us, 
686 


CHAP.  IV.]    RIGHT  OF  PROTECTION  AND  ASYLUM.        [v^  104. 

is  that  such  a  ])ractice  obviously  tends  totlic  cncouia^iciiK'Ht  ojOfrciiscs 
for  which  asylum  may  be  desired. 

"There  is  cause  to  believe  that  the  instability  of  the  (lovernintMits  in 
countries  where  the  practice  has  been  tolerated  may  in  a  *yeat  dr^^rei-. 
be  imputed  to  such  toleration.  For  this  reason,  if  for  none  other,  the 
Government  of  the  United  States,  which  is  one  of  law  and  order  an<l  of 
constitutional  observance,  desires  to  extend  no  encouragement  to  a  prac- 
tice which  it  believes  to  be  calculated  to  promote  and  encourage  revo- 
tionary  movements  and  ambitious  plottings. 

"  Instances,  too,  have  occurred  where  asylum,  having  been  granted 
with  impunity,  has  been  grossly  abused  to  the  defeat  of  justice,  not 
only  against  political  offenders,  but  also  against  persons  charged  with 
infamous  crimes.  Such  abuses  are  plainly  incompatible  with  the  sta- 
bility and  welfare  of  Governments,  and  of  society  itself. 

"  Temptations  sufficient  to  lead  to  an  abuse  of  the  practice  cannot  fail 
to  abound  in  most  persons  who  may  exercise  it.  Such  temptations  are 
incident  to  human  nature,  and  in  countries  where  political  revolutions 
are  of  frequent  occurrence  one  must  be  gifted  with  uncommon  self-denial 
to  be  wholly  free  from  their  influences. 

"  It  is  believed,  however,  to  be  sound  policy  not  to  expose  a  minister 
in  a  foreign  country  to  the  embarrassments  attendant  ujjon  the  practice. 
Still,  this  Government  is  not,  by  itself,  and  independently  of  all  others, 
disposed  to  absolutely  prohibit  its  diplomatic  representatives  abroad 
from  granting  asylum  in  every  case  in  which  application  therefor  may 
be  made. 

"We  do  not,  however,  withhold  from  them  our  views  of  the  practice, 
and  will  expect  that,  if  they  do  exercise  the  prerogative,  it  will  be  done 
under  their  own  responsibility  to  their  own  Government.  We  would 
prefer,  therefore,  not  formally  to  assent  to  the  propositions  contained  in 
the  memorandum  above  referred  to  without  ascertaining  the  views  of 
the  other  Governments  concerned  in  regard  to  them. 

"  Some,  at  least,  of  those  propositions  appear  to  be  fair  enough  ;  but 
as  the  circumstances  of  cases  in  which  asylum  may  be  granted  greatly 
vary,  it  would,  in  the  opinion  of  the  undersigned,  be  preferable,  until 
an  understanding  and  an  approach  to  ac<!ord  of  views  as  to  the  future 
practice  in  this  regard  can  be  had  by  the  other  powers,  that  every  such 
case  should  be  treated  according  to  its  merits,  rather  than  that  we  should 
be  fettered  in  advance  by  rules  which  may  be  found  not  to  be  i)racti- 
cally  applicable  or  useful." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Preston,  Dec.  II,  1875.     MSS.  Notes,  Hayti  :  For. 
Re].,  1876. 

The  fact  that  a  fugitive  slave  in  Tangier  takes  refuge  in  the  house  of 

an  American  citizen  in  that  place  does  not  entitle  him  as  a  right  to 

make  any  claim  on  the  Government  of  the  United  States  for  protection. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Mathews,  Mar.  15,  1877.     MSS.  lust.,  Barb.  St. 

687 


^^  lf)4."|  btM.O^fArtO    AOEXTS.  [cHAf.  IV. 

"  It  is  <l('siie<l  that  om-  ol'  yonv  liist  otlicial  acts,  alter  the  i)ieseiita- 
liotiot'  youv  cicdcMitial;^  as  iniiiister  at  Madrid,  shall  be  to  notify  the 
minister  of  state  ot  His  ^lajesty  that  you  are  authorized,  on  belialf  of 
tbe  United  States,  to  take  i)art  in  a  friendly  conference  of  foreign  repre- 
sentatives whicb  it  is  proposed  to  bold  at  Madrid  for  the  purpose  of 
discussing  tbe  question  of  the  protection  extended  to  native  Moors  in 
Morocco  by  the  diplomatic  and  consular  agents  of  foreign  states  resi- 
dent in  that  country. 

"  In  order  that  you  may  uuderstandingly  take  part  in  that  projected 
conference,  and  appreciate  with  as  much  exactness  as  possible  the 
nature  of  tbe  questions  to  be  brought  up  before  it,  it  will  be  necessary 
to  give  you  a  brief  r^sum^  of  the  facts  so  far  as  they  appear  in  the  corre- 
spondence of  this  Department,  with  transcripts  of  the  pertinent  papers. 

'-  On  the  14th  of  June,  1877,  Mr.  Plunkett,  the  British  charge  d'affaires 
in  Washington,  addressed  the  Department,  inclosing  a  printed  extract 
from  a  dispatch  from  the  British  minister  at  Tangier  to  the  Earl  of 
Derby,  with  a  memorandum  of  what  took  place  at  the  meeting  of  the 
foreign  representatives  at  the  house  of  the  Moorish  minister  for  foreign 
affairs  on  the  10th  of  March,  1877.  The  dispatch  of  Sir  J.  H.  Drum- 
mond  Hay,  thus  referred  to,  contains  various  allegations  as  to  the  abuses 
which  have  grown  up  from  the  practice  of  giving  protection  to  Moorish 
subjects  by  foreign  diplomatic  and  consular  officers,  particularly'  by 
exempting  them  from  the  payment  of  taxes.  It  was  therein  stated  that 
the  evil  is  a  growing  one,  '  more  especially  on  the  part  of  those  foreign 
officers  who  represent  countries  which  have  no  trade  and  hardly  any 
residents  in  Morocco  belonging  to  their  respective  nationalities.'  The 
several  representatives  who  took  part  in  that  meeting  discussed  this 
question  and  seem  to  have  admitted  the  existence  of  the  evil  and  depre- 
cated the  practice.     *     *     * 

"  The  matter,  however,  speedily  passed  beyond  this  stage,  and  its  next 
phase  was  a  series  of  meetings  held  at  Tangier,  by  the  foreign  repre- 
sentatives resident  there,  for  the  discussion  of  various  points  of  admin- 
istration and  foreign  intercourse,  among  them  the  question  of  irregular 
foreign  protection.  The  details  of  these  conferences  were  communicated 
to  the  Department  by  Mr.  Mathews,  in  his  No.  258,  of  November  0, 
1877,  with  full  copies  of  the  proces-verbal  of  the  meetings,  and  informa 
tion  of  these  proceedings  was  likewise  received  from  the  British  charge 
d'affaires  here,  under  date  of  October  8, 1877,  with  accompanying  copies 
of  the  correspondence  of  Sir  J.  H.  Drummond  Hay,  and  extracts  of  the 
pertinent  portions  of  the  proces  verbal.  I  have  to  refer  you  to  these  sev- 
eral papers,  herewith  transmitted  in  copy,  an  attentive  perusal  of  which 
will  acquaint  you  with  all  the  facts  in  relation  thereto  in  the  possession 
of  the  Department,  merely  citing  for  your  present  information,  in  con- 
nection with  this  instruction,  the  language  used  by  Sir  J.  H.  Drummond 
Hay  with  reference  to  the  action  of  Mr.  Mathews.     He  says : 

"'The  United  States  consul-general  presented  lists  of  thirty-seven 

688 


Chap,  iv.]       Riont  OP  PROTKctioJf  and  asylum,  [§  104. 

persons  protected  throughout  the  Empire.  On  observing;  th:it  he  i)ro- 
tected  ten  native  J«'ws  as  ajj^ents  at  Tangier,  four  at  Meknas,  three  at 
Fas,  and  two  at  Alcassar,  I  said  that  it  apix'aicd  stran^re  that  the 
United  States  consul  shouhl  find  it  necessary  to  pUice  tiiese  piMsons  <»n 
the  list  of  protected  natives,  when  the  trade  of  the  United  States  with 
Morocco  was  almost  nil,  whereas  Great  Britain,  whicli  had  two  thirds 
of  the  trade  of  the  Empire,  did  not  i)rotect  a  single  native  at  any  <»n<'  of 
these  towns. 

''  'Colonel  Mathews  declared  that  Cid  Mohammed  Bargash  had  fre- 
quently stated  to  him  that  he  gave  no  trouble  to  the  Moorish  Govern- 
ment by  these  protections. 

"'I  have  to  remark  that  I  did  not  find  the  list  presented  by  the 
United  States  consul  general  to  his  colknigues  coriesponded  with  that 
delivered  by  him  to  the  local  authorities.' 

"  It  appears  from  the  reports  of  the  i)roceedings  then  had,  that,  al- 
tliough  the  greater  part  of  the  demands  put  forward  by  the  Moorish 
Government  were  agreed  to,  yet  some  important  questions  were  left 
undecided  On  account  of  the  objections  made  by  several  of  the  powers- 
France,  Italy,  Portugal,  and  Brazil. 

"  Under  instructions  from  his  Government  the  British  minister  at  this 
capital  brought  this  circumstance  to  the  attention  of  this  GovernuK-nt 
on  the  4th  of  November  last,  stating  that  it  was  thought  that  a  contin- 
uance of  the  discussion  Avas  not  likely  to  further  an  agreement  upon  the 
questions  left  undecided,  and  that  unless  th-e  Governments  concerned 
were  disposed  to  send  positive  instructions  to  their  agents  of  a  nature 
to  satisfy  the  Moorish  Government,  the  best  prospect  of  a  solution  lay 
in  a  reference  of  the  question  to  a  commission  or  meeting  of  representa- 
tives at  some  foreign  court  in  which  the  Moorish  Government  may  be 
represented  by  a  delegate  or  delegates  deputed  for  the  purpose,  and 
suggesting  the  choice  of  Madrid  for  such  a  meeting.  This  course  was 
represented  as  enabling,  among  other  benefits,  the  removal  of  the  «lis- 
cussion  from  the  hands  of  those  who  have  hitherto  conducted  it,  and 
avoiding  any  difficulties  which  may  have  arisen  from  personal  feelings 
or  oi)inions,  in  which  view  I  fully  coincide. 

"It  now  appears  from  a  telegraphic  dispatch  yesterday  received  from 
Mr.  Reed,  that  the  Spanish  Government  has  taken  the  initiative  in 
bringing  about  the  conference  suggested,  and  looks  to  the  proper  rei)re- 
seutation  of  this  Government  thereat. 

"It  is,  in  many  respects,  desirable  that  we  should  be  competently 
represented  at  such  a  conference,  and  you  have  accordingly  been  desig- 
nated for  the  purpose.     *     *     * 

"It  is  sincerely  hoped  that  the  anticipation  of  Lord  Salisbury,  con- 
veyed in  Sir  Edward  Thornton's  note  of  November  4.  1879,  may  \w  well 
founded,  and  that  the  discussion  may  ])roceed  without  any  of  the  per- 
sonal feeling  which  seems  unhappily  to  have  characterized  its  progress 
S.  Mis.  162— VOL.  I 44  689 


§  104.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

at  Tangier  hitherto.  lu  i^riiiciple,  this  Government  is  cordiallj'  io 
favor  of  the  adoption  by  common  consent  of  an  equitable  rule  which 
may  do  away  with  the  excessive  and  injurious  exercise  of  the  preroga- 
tive of  foreign  protection  of  natives  which  has  grown  up  under  the 
shadow  of  treaty  stipulations  and  native  usage,  and  which  is  repre- 
sented as  burdensome  to  the  Moorish  exchequer  and  unjust  to  its  Gov- 
ernment, but  in  reaching  a  due  settlement  regard  must  be  had  to  the 
proper  maintenance  and  security  of  consular  establishments  in  that 
country  and  the  necessary  employment  of  natives  as  guards,  interpre- 
ters, and  servants,  and  in  such  capacities  as  may  be  essential  to  the 
proper  representation  and  protection  of  foreign  commercial  interests. 
This  Government  could  not,  however,  see  with  complacent  iudifier- 
ence  any  proceedings  on  the  part  of  the  proposed  conference  looking 
to  an  investigation  of  the  past  conduct  of  foreign  representatives  at 
Tangier,  and  sitting  in  ex  parte  judgment  on  their  motives  and  moral- 
ity.    *     *     * 

''Ton  will  make  full  and  prompt  report  to  the  Department  of  the 
proceedings  of  the  conference,  transmitting  the  proces-verbal,  and 
seeking,  in  your  dispatches  thereon,  to  elucidate  for  the  better  infor- 
mation of  the  Department,  the  points  which  may  arise  in  the  discus- 
sion. 

"It  is  not  understood  from  the  invitation  of  the  Spanish  Government 
whether  a  formal  full  power  will  be  needed  by  you.  One  is,  however, 
transmitted  herewith,  in  case  you  should  find  that  your  colleagues  are 
required  to  present  other  credentials  than  those  of  their  respective 
offices." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Fairchild,  Mar.  12,  1880.     MSS.  Inst.,  Spain; 
For.  Eel.,  1880. 

"The  views  of  this  Government  as  to  the  right  of  asylum  have  long 
been  well  known.  You  will  find  them  in  the  correspondence  of  this 
Department  with  your  predecessor,  Mr.  Bassett.  This  Government  is 
well  aware  that  the  practice  of  extraterritorial  asylum  in  Hayti  has 
become  so  deeply  established  as  to  be  practically  recognized  by  what- 
ever Government  may  be  in  i)ower,  even  to  respecting  the  premises  of 
a  consulate,  as  well  as  a  legation.  This  Government  does  not  sanction 
the  usage,  and  enjoins  upon  its  representatives  in  Hayti  the  avoidance 
of  all  pretexts  for  its  exercise.  While  indisposed  from  obvious  motives 
of  common  humanity  to  direct  its  agents  to  deny  temporary  shelter  to 
any  unfortunates  threatened  with  mob  violence,  it  is  proper  to  instruct 
them  that  it  will  not  countenance  them  in  any  attempt  to  knowingly 
harbor  offenders  against  the  laws  from  the  pursuit  of  the  legitimate 
agents  of  justice." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Langston,  Dec.  15,  1883.     MSS.  Inst., 
Hayti. 

690 


CHAP.  IV.]  RIGHT    OP    PROTECTION    AND    ASYLUM.  [§  104 

"  It  appears  that  the  coirespoiKU'iicc-  between  yourself  and  the  Colom- 
bian foreijin  office  arose  from  the  refusal  of  a  certain  Senor  Uribe,  a 
wealthy  Colombiau  citizen,  to  pay  his  war  contributions,  which  led  to 
an  order  for  his  arrest,  and  then  to  his  bein^-  rescued  and  concealeil  by 
the  minister  of  the  Argentine  liepublic  under  the  assumed  right  of  asy- 
lum of  his  legation.  This  right  the  Colombian  authorities  appear  to 
have  respected  ;  but  the  minister  of  foreign  affairs  addressed  a  ciicular 
note,  a  copy  of  which  you  inclose,  to  the  representatives  of  foreign 
powers,  protesting  against  the  right  of  asylum  lof  foreign  legations  for 
the  enemies  of  the  Republic,  and  intimating  that,  in  spite  of  past  tol- 
eration of  it,  the  Government  might  feel  itself  under  the  necessity  of 
claiming  the  surrender  of  individuals  who  had  taken  refuge  in  the  resi- 
dences of  ministers,  and  '  of  whom  the  legitimate  authority  may  for  any 
motive  whatever  be  in  search.' 

"  In  reply  to  this  you  inform  the  minister  of  foreign  atiairs,  as  you 
state,  'upon  your  own  responsibilitj^  before  having  had  the  oi)portnnity 
to  refer  it  to  your  Government,'  that  a  public  minister  '  is  entitled  to 
all  the  privileges  annexed  by  the  law  of  nations  to  his  i)ublic  character, 
and  among  these  entire  and  absolute  exemption  from  local  jurisdiction; 
also  that  civil  and  criminal  jurisdiction  over  those  attached  to  his  lega- 
tion rests  with  the  minister  exclusively,  to  be  exercised  by  him  accord- 
ing to  the  laws,  regulations,  and  instructions  of  his  own  Government, 
and  above  all  that  his  house  cannot  be  invaded  by  order  of  either  the 
civil  or  military  authorities  of  the  local  Government,  no  matter  how 
apparent  the  necessity  therefor.' 

"  These  remarks  at  any  time  would  require  to  be  materially  qualified, 
and  you  will  see  by  the  inclosed  extract  from  the  new  diplomatic;  instruc- 
tions, a  complete  copy  of  which  will  soon  be  sent  you,  what  the  views 
of  this  D(5partment  are  as  regards  the  so-called  extraterritorial  (pies 
tions  for  the  guidance  of  our  diplomatic  representatives  abroatl.  It  is 
generally  safer  when  a  minister  receives  such  a  communication  as 
Senor  Eestrepo  addressed  to  you  not  to  make  it  the  occasion  of  argu 
ments  or  of  statements  which  might  be  construed  as  committing  the 
Government,  but  to  acknowledge  it  and  refer  it  home  for  instructions. 

"As  regards  the  right  of  asylum,  which  was  the  immediate  occasion 
of  the  correspondence  in  question,  the  new  instructions  do  not  permit 
it  for  persons  outside  of  the  agent's  dipUunatic  or  i)ersonal  household. 

'•The  w^orks  on  international  law  do  not  sustain  the  uncpndificd  right 
of  asylum,  and  the  Spanish  law  forbids  it  altogether.     There  are  sev- 
eral cases  cited  in  the  law  books  where  the  necessity  of  claiming  the 
surrender  of  individuals  who  have  taken  refuge  in  a  minister's  resi 
dence  has  been  enforced  and  admitted  by  other  nations. 

"  In  1726  the  Duke  of  Ripperda,  minister  of  Philip  II,  took  refuge  in 
the  hotel  of  the  British  embassador  at  Madrid,  but  under  the  opinion  of 
the  council  of  Castile  was  taken  by  force  from  the  embassador's  hotel, 

691 


§  104.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

and  Great  Britain  did  not  claim  the  right  of  her  embassador  to  retain 
the  refugee." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Scruggs,  June  16,  1885.     MSS.  lust.,  Colombia; 
For.  Eel.,  1885. 

"  The  Government  of  the  United  States  does  not  claim  for  its  lega- 
tions abroad  any  extraterritorial  privileges  of  asylum,  and  consequently 
makes  no  such  ckmu  in  respect  of  consular  offices  or  private  residences 
of  American  citizens,  or  American  merchant  vessels  in  port.  If,  as  a 
custoqa,  in  any  country,  the  practice  of  asylum  prevails,  and  is  tacitly 
or  explicitly  recognized  by  the  local  authorities  in  respect  of  legations, 
consulates,  private  dwellings,'  or  vessels  of  another  nationality,  the 
exercise  of  the  consuetudinary  privilege  by  Americans  could  not  be 
deemed  exceptional,  and  if,  under  any  circumstances,  refugees  tind  their 
way  to  places  of  shelter  under  the  American  flag,  or  in  the  domicil  of 
American  citizens,  we  should  certainly  expect  such  privileges  as  would 
be  accorded  were  the  like  shelter  under  the  flag  or  domicil  of  another 
power.  But  we  claim  no  right  or  privilege  of  asylum  ;  on  the  contrary, 
we  discountenance  it,  especially  when  it  may  tend  to  obstruct  the  direct 
operation  of  law  and  justice." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Thompson,  Nov.  7,  1885.     MSS.  Inst.,  Hayti. 

"  This  privilege  (of  asylum,  see  supra,  §§  90-96),  however,  does  not 
embrace  the  right  of  asylum  for  persons  outside  of  the  agent's  diplo- 
matic or  personal  household. 

"  In  some  countries,  where  frequent  insurrections  occur  and  conse- 
quent instability  of  government  exists,  the  practice  of  extraterritorial 
asylum  has  become  so  iirmly  established,  that  it  is  often  invoked  by  un- 
successful insurgents,  and  is  practically  recognized  by  the  local  Govern- 
ment to  the  extent  even  of  respecting  the  premises  of  a  consulate  in 
which  such  fugitives  may  take  refuge.  This  Government  does  not 
sanction  the  usage,  and  enjoins  upou  its  representatives  in  such  coun- 
tries the  avoidance  of  all  pretexts  for  its  exercise.  While  indisi)osed 
to  direct  its  agents  to  deny  temporary  shelter  to  any  person  whose 
life  may  be  threatened  by  mob  violence,  it  deen)S  it  proper  to  instruct 
its  representatives  that  it  will  not  countenance  them  in  any  attempt  to 
knowingly  harbor  offenders  against  the  laws  from  the  pursuit  of  the 
legitimate  agents  of  justice. 

"  The  liberty  of  worship  is  very  generally  conceded  to  foreign  lega- 
tions in  countries  which  maintain  a  religious  establishment  diflerent 
from  that  of  the  diplomatic  agent's  country.  If  any  diplomatic  agent 
should  assert  the  right  of  worship,  within  his  legation,  for  himself  and 
those  of  his  fellow-countrymen  who  profess  the  same  faith  as  he  does,  he 
would  be  upheld,  within  the  limits  of  tlie  like  privilege  conceded  in  the 
country  of  his  sojourn  to  other  foreign  legations. 

"The  powers  and  duties  of  diplomatic  officers  in  regard  to  their 
fellow-citizens  depend  in  a  great  measure  ui)on  the  municipal  law  of  the 
United  States.  Ko  civil  jurisdiction  can  be  exercised  by  them  over  their 
•countrymen  without  express  authority  of  law,  or  treaty  stipulation 
with  the  state  in  which  they  reside,  and  no  criminal  jurisdiction  is  per- 
mitted to  them  in  Christian  states.  They  are  particularly  cautioned 
not  to  enter  into  any  contentions  that  can  be  avoided,  either  with  their 

692 


[chap.  IV.       PKOTECTION    OF    FRIENDLY    FOREIGNERS.  [§  105. 

couutryiueu  or  with  the  subjects  or  authorities  ot  the  countrv.  They 
should  use  every  endeiivor  to  settle  iu  an  amicable  iiiamier  all  (lisputes 
in  which  their  countiynien  may  l>e  coiK^erned,  but  tlu'V  should  take  no 
l)art  iu  litigation  between  citizens.  They  slutuld  countenance  and  j)ro- 
tect  theui  before  the  authorities  ol'  the  ('ountry  in  all  <-ases  iu  which  they 
maj'  be  injured  or  ojtpressed,  but  their  etlorts  should  not  be  extended  to 
those  who  have  been  willfully  guilty  of  an  infraction  of  the  local  laws. 
It  is  their  duty  to  endeavor,  on  all  oc(;asions,  to  maintain  and  promote 
all  rightful  interests,  and  to  protect  all  ])rivilegcs  that  are  provided  for 
by  treaty  or  are  conceded  by  usage.  If  representations  made  to  the 
authorities  of  the  country  fail  to  secure  proper  redress,  the  case  should 
be  reported  to  the  Department  of  State." 

Printed  Pers.  Inst.,  Dip.  Agents,  1885. 

The  house  of  a  foreign  minister  cannot  be  made  an  asylum  for 
a  guilty  citizen,  nor,  it  is  api)reheuded,  a  prison  for  an  innocent  one. 
And,  though  it  be  exempt  from  the  ordinary  jurisdiction  of  the  country, 
yet,  in  such  cases,  recourse  would  be  had  to  the  interposition  of  the 
extraordinary  power  of  the  state. 

1  Op.,  47  Bradford,  1794. 

As  to  privileges  of  minister's  home,  see  supra,  §  96. 

The  general  approval  by  the  South  American  Government.^,  and  by 
those  of  San  Domingo  and  of  Hayti,  of  the  asylum  given  by  foreign 
consuls  and  diplomatic  agents  to  heads  of  governments  suddenly  de- 
posed by  mobs,  may  be  explained  on  the  grouml  that  otherwise  the 
lives  of  experienced  statesmen  would  be  so  precarious  iu  those  coun- 
tries as  to  expose  government  permanency  to  risks  even  greater  than 
those  to  which  it  is  there  at  present  exposed. 

XXIX.  MAY   EXTEND   PROTECTION  TO    CITIZENS    OF  FRIENDLY  COUN- 
TRIES. 

§105. 

The  authority  given  by  this  Government  to  its  diplomatic  and  con- 
sular agencies  to  extend  protection  to  Swiss  citizens  in  places  where 
there  is  no  Swiss  consul,  leaves  the  extension  of  such  protection  a  mat- 
ter of  discretion  in  the  officer  appealed  to. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cubisol,  June  27,  \^li\.    MSB.  Inst.,  Barh.  Powers. 
See  Mr.  Fish  to  Mr.  Heap,  Oct.  12,  1877,  ibid.  ;  Dec.  11,  1877.  ibid. 

"  In  cases  of  revolution  the  duties  of  a  minister  are  not  contined  to 
the  protection  of  his  own  countrymen,  but  extend  to  the  citi/.»'ns  and 
subjects  of  all  friendlv  nations  left  by  the  politu-al  events  without  a 
representative.  The  government  of  Miramou  having,  m  1N)1>,  revoked 
the  exequatur  of  the  American  consul  at  Mexico,  because  the  I  nited 
States  had  recognized  President  Juarez,  he  asked  the  interposition 
of  the  British  minister  for  protection  from  the  dc  facto  authorities  lor 
the  persons  and  propertv  of  Americans.  This  protection  having  been 
withheld,  Mr.  Cass,  in  instructing  Mr.  Dallas,  May  lli,  1S..:»,  to  bring 
to  the  notice  of  the  British  Government  the  cour.se  ot  its  minister.  sa\s: 
'In  countries  in  a  state  of  revolution  and  during  periods  ot  i.ul)lic  ex- 

693 


§  105.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

citement  it  is  the  practice  of  moderu  times  for  the  foreign  represeuta- 
t'ves  lesiding  there  to  interpose  by  the  exertion  of  their  influence  for 
the  protection  of  the  citizens  of  friendly  powers  exposed  to  injury  and 
danger,  and  left  without  any  minister  of  their  own  country  to  watch  over 
them.  The  President  would  not  hesitate  to  visit  with  marks  of  his  dis- 
])leasure  any  American  minister  who  shouhl  have  it  in  his  power  to  af- 
ford protection  to  the  persons  or  property  of  citizens  of  a  friendly  nation 
l)laced  iu  peril  by  revolutionary  commotions,  and  having  no  national 
representative  to  appeal  to,  should  he  fail  to  exert  his  influence  in  their 
behalf.'" 

Lawrence's  Wheaton  (ed.  1863),  373,  374. 

"  Soon  after  the  existing  war  broke  out  in  Europe,  the  protection  of 
the  United  States  minister  in  Paris  was  invoked  in  favor  of  Xorth  Ger- 
mans domiciled  in  French  territory.  Instructions  were  issued  to  grant 
the  protection.  This  has  been  followed  by  an  extension  of  American 
protection  to  citizens  of  Saxony,  Hesse,  and  Saxe-Coburg,  Gotha,  Co- 
lombia, Portugal,  Uruguay,  the  Dominican  Kepublic,  Ecuador,  Chili, 
Paraguay,  and  Venezuela,  in  Paris.  The  charge  was  an  onerous  one, 
requiring  constant  and  severe  labor,  as  well  as  the  exercise  of  patience, 
prudence,  and  good  judgment.  It  has  been  performed  to  the  entire 
satisfaction  of  this  Government,  and,  as  I  am  officially  informed,  equally 
so -to  the  satisfaction  of  the  Government  of  North  Germany." 
President  Grant,  Second  Annual  Message.     1870. 

For  details  of  aid  rendered  through  Mr.  Washhurue,  minister  of  the  United  States 
in  Paris,  to  Germans  in  Paris  in  August,  1870,  see  Mr.  Washburne  to  Mr.  Fish, 
Aug.  15  and  Aug.  22,  1870,  and  other  papers  forwarded  with  President 
Hayes'  message  of  Feb.  6,  1878. 

"  I  was  glad  to  know  that  the  Department  coincided  with  Mr.  Ban- 
croft and  myself  in  the  opinion  that  all  these  expenses  (those  for 
the  relief  of  Germans  in  Paris  during  the  siege)  should  be  paid  by  the 
United  States.  It  would  certainly  have  been  unworthy  of  a  great  Gov- 
ernment like  ours  to  permit  itself  to  be  paid  for  hospitalities  extended 
to  the  subjects  of  other  nations  for  whom  our  protection  had  been 
sought." 

Mr.  Washburne,  minister  at  Paris,  to  Mr.  Fish,  Nov.  18,  1870.  MSS.  Dispatches, 
France.    Documents  attached  to  President  Hayes'  message  of  Feb.  6,  1878. 

"You  are  aware  that  Monseigneur  Darboy,  the  archbishop  of  Paris, 
was  seized  some  time  since,  hj  order  of  the  Commune,  and  thrust  into 
prison  to  be  held  as  a  hostage.  Such  treatment  of  that  most  devout 
and  excellent  man  could  have  but  created  a  great  sensation,  particularly 
in  the  Catholic  world.  On  Thursday  night  last  I  received  a  letter  from 
Monseigneur  Chigi,  archbishop  of  Myre  and  apostolic  nuncio  of  the 
Holy  See,  and  also  a  communication  from  Mr.  Louoner,  canon  of  the 
diocese  of  Paris ;  Mr.  Lagarde,  the  vicar-general  of  Paris,  and  Messrs. 
Bourset  and  AUain,  canons  and  members  of  the  metropolitan  chai)ter 
of  the  church  of  Paris,  all  making  a  strong  appeal  to  me,  iu  the  name 
of  the  right  of  nations,  humanity,  and  sympathy,  to  interpose  my  good 
offices  iu  behalf  of  the  imprisoned  archbishop.  I  have  thought  that  I 
should  have  been  only  conforming  to  what  I  believed  to  be  the  policy 
of  our  Government,  and  carrying  out  what  I  conceived  to  be  j'our  wishes 

694 


CHAP.  IV.]        PROTECTION    OF    FRIKNDLY    FOUKIGNEUS.  [§  lOr). 

under  the  ciieinnstaiices,  by  coiiiplyiuj;  with  the  request  of  the  m^utU-- 
men  who  have  acUhessed  me.  I,  therefore,  early  tliis  nioniinj;  put  my- 
self in  communication  with  General  (.'Inseret,  wiio  seems,  at  the  present 
time,  to  be  the  directing-  man  in  alfairs  here.  J  told  him  that  I  applied 
to  him  not  in  my  diplomatic  capacity,  but  simi)ly  in  the  interest  of  trood 
feelin.i;-  and  humanity,  to  see  if  it  were  not  possil)le  to  have  the  arch- 
bishop relieved  from  arrest  and  confinement,  lie  answere«l  that  it  was 
not  a  matter  within  his  jurisdiction,  and  however  much  he  would  like  to 
see  the  archbishop  released,  he  thought,  in  consideration  of  tiic  state  of 
affairs,  it  would  be  impossible.  lie  said  that  he  was  not  arrested  for 
crime,  but  simply  to  be  held  as  a  hostage,  as  many  others  had  been. 
Under  the  existing  circumstances  he  thought  it  would  lie  useless  to  take 
any  steps  in  that  direction.  I,  myself,  thought  the  Commune  would  not 
dare,  in  the  present  excited  state  of  public  feeling  in  l*aris,to  reh'ase  the 
archbishop.  1  told  General  <Jluseret,  however,  that  I  must  see  him  to 
ascertain  his  real  situation,  the  condition  of  his  health,  and  wiiether  he 
was  in  want  of  anything.  He  said  there  would  be  no  objection  to  that, 
and  he  immediately  went  with  me,  in  person,  to  see  the  procureur  of  the 
Gommune;  and  upon  his  application  I  received  from  the  ])refect  a  per- 
mission to  visit  the  archbishop  freely  at  any  time.  In  company  with  my 
l)rivate  secretary,  Mr.  McKean,  I  then  went  to  the  Mazas  prison,  where  I 
was  admitted  without  difficulty,  and  being  ushered  into  oneof  the  vacant 
(;ells  the  archbishop  was  very  soon  brought  in.  I  must  say  that  1  was 
deeply  touched  at  the  appearance  of  this  venerable  man.  With  his 
slender  i)erson,  his  form  somewhat  bent,  his  long  beard,  for  he  has  not 
been  shaved  ajjparently  since  his  confinement,  his  face  haggard  with 
ill-health,  all  could  not  have  failed  to  have  moved  the  most  indilferent. 
I  told  him  I  had  taken  great  pleasure,  at  the  instance  of  his  fiiends,  in 
intervening  on  his  behalf,  and  while  I  could  not  })romise  myself  the 
satisfaction  of  seeing  him  released,  I  was  very  glad  to  be  able  to  visit 
him  to  ascertain  his  wants,  and  to  assuage  the  cruel  position  in  whicli 
he  found  himself.  He  thanked  me  most  heartily  and  cordially  for  the 
disi)osition  I  had  manifested  toward  him.  I  was  charmed  by  his  cheer- 
ful si)irit  and  his  interesting  conversation.  He  seemed  to  appreciate 
his  critical  situation,  and  to  be  prepared  for  the  worst.  He  had  no  word 
of  ])itterness  or  reproach  for  his  persecutors,  but  on  the  other  hand  re- 
marked that  the  world  judged  them  to  be  worse  than  they  really  were. 
He  was  ])atiently  awaiting  the  logic  of  events  and  praying  that  Provi- 
dence uiight  find  a  solution  to  these  terrible  troubles  without  the  further 
shedding  of  human  blood." 

Mr.  WaHlibnrne,  minister  at  Paris,  to  Mr.  Fish,  Apr.  23,  1871.     MSS.  Dispatclios, 
France.     Doc.  accompanying  President  Hayes'  message  of  Feli.  6,  IrtTH. 

"  He  was  taken  from  this  cell  a  little  before  8  o'clock  on  Wednesday 
evening,  the  24th  ultimo.  The  cur^  6f  the  Madeleine,  the  Abbe  l)e- 
guerry,  the  Senator  Bonjeau,  and  three  other  distinguished  hostages 
were  taken  from  their  cells  in  the  same  prison  at  the  same  time,  into 
the  court  of  the  building,  and  all  were  placed  against  the  wall,  which 
iii(;loses  the  somber  edifice  of  La  Eocpiette.  The  archbishop  was  jjlaced 
at  the  head  of  the  line,  aud  the  fiends  who  murdered  him  with  their 
knives  had  scratched  a  cross  upon  a  stone  in  the  wall  at  the  very  place 
where  his  head  must  have  touched  at  the  moment  when  the  fatal  shots 
were  fired.  He  did  not  fall  at  the  first  volley,  but  stood  erect,  calm, 
and  immovable.  Before  the  other  discharges  came  which  launched  him 
into  eternity  he  crossed  himself  three  times  upon  his  forehead.     The 

695 


§  106.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

otlier  victims  Ml  together.  The  marks  of  tlie  bullets,  made  upon  the 
wall  as  they  passed  through  their  bodies,  were  distinctly  visible.  The 
archbishop's  body  was  afterward  mutilated,  his  abdomen  being  cut 
open.  All  the  bodies  were  then  put  into  a  cart  and  removed  to  P^re  la 
Chaise,  which  is  but  a  few  squares  off,  where  they  were  thrown  into 
the  comujon  ditch,  from  which  they  were  happily  rescued  before  decom- 
position had  entirely  taken  place.  Eeturning  from  La  Koquette,  I 
came  by  the  'Archevicbe,'  where  the  body  of  the  archbishop  was  lying 
in  state.  He  was  so  changed  that  I  should  scarcely  have  known  him. 
Thousands  and  thousands  of  the  people  of  Paris  were  passing  through 
the  palace  to  look  for  the  last  time  uj.on  him  who  was  so  endeared  to 
them  by  his  benevolent  acts,  his  kindly  disposition,  and  his  love  of  the 
poor  and  the  lowly.  In  all  of  the  six  or  seven  interviews  I  had  with 
the  arclibishop  in  the  prison,  except  the  last,  I  always  found  him  cheer- 
ful, and  sometimes  even  gay,  and  never  uttering  oue  word  of  complaint. 
No  man  could  be  with  him  without  being  captivated  by  his  cheerful 
and  Christian  spirit  and  enlightened  conversation.  The  archbishop 
was  learned,  accomplished,  and  eloquent,  and  was  a  most  liberal  man 
in  his  religious  and  political  sentiments.  He  met  his  fate  with  the  firm- 
ness of  a  Christian  martyr,  and  all  generous  hearts  will  join  in  a  tribute 
of  mourning." 

Same  to  same,  May  31,  1871 ;  ihid. 

That  a  consul  cannot  use  his  position  to  become  a  means  of  commnuicatiou 
with  an  enemy  of  the  countrj^  to  which  he  is  accredited,  see  infra,  §  119. 

XXX.  AVOIDANCE  OF  POLITICAL  INTERFERENCE  ENJOINED. 

§  106. 

The  alleged  course  of  Mr.  Gouverneur  Morris,  when  in  France,  in 
rendering  advice  and  support  to  the  reactionary  party,  was  the  cause 
of  much  embarrassment  to  President  Washington. 

''  He  [the  President]  said  he  considered  the  extracts  from  Ternant 
very  serious,  in  short,  as  decisive ;  that  he  saw  that  Gouverneur  Morris 
could  no  longer  be  continued  there  consistent  with  the  public  good ; 
that  the  moment  was  critical  in  our  favor,  and  ought  not  to  be  lost; 
that  he  was  extremely  at  a  loss  what  arrangement  to  make.  I  asked 
him  whether  Gouverneur  Morris  and  Pinckney  might  not  change  places. 
He  said  that  would  be  a  sort  of  remedy,  but  not  a  radical  one.  That  if 
the  French  ministry  conceived  Gouverneur  Morris  to  be  hostile  to  them ; 
if  they  would  be  jealous  merely  on  his  proposing  to  visit  Loudon,  they 
would  never  be  satisfied  with  us  at  placing  him  at  London  permanently." 

Conversation  between  Mr.  Jefferson,  Sec.  of  State,  and  President  Washington, 
Feb.  20,  1793.  '2  Randall's  Life  of  Jelferson,  116.  See  further,  for  criticisms 
ou  Morris's  course,  1  John  Adams'  Works,  500;  3i6i(Z.,219,  320;  9  ihid.  307. 

As  to  embarrassments  arising  from  Mr.  Gouverneur  Morris'  active  participation 
when  abroad  in  European  politics,  see  Mr.  Vaughan,  in  Monroe  MSS.,  Mem. 
of  1826.    MSS.  Dept.  of  State. 

For  Gouverneur  Morris'  correspondence  in  Paris,  in  1792-93,  see  1  Am.  St.  Pap. 
(For.  Kel.),  312,  329. 

Mr.  Monroe's  course  as  minister  to  Paris  in  1794  was  severely  criti- 
cised at  the  time  by  the  Federalists  on  the  ground  that  it  was  unduly 
conciliatory  to  France.  See,  as  to  Mr.  Monroe's  course  in  other  respects, 
infra,  §§  107,  150?> ;  supra,  §  85.  We  must  remember,  however,  that 
Mr.  IMonroe's  instructions,  which  were  drawn  by  Mr.  Eandolph,  as  Sec- 
retary of  State,  required  him  to  take  every  step  to  conciliate  the  yevO' 
696 


CHAP.  IV.]  POLITICAL   INTEL  FKKENCE    PUOHIBITED.  [vN  106. 

Jntionary  autiioritics  who  were  at  (lie  lime  ilie  de  facto  (lovenmient  of 
France,  and  that  liis  j^eneious  syinpatliies  with  that  movernent  were 
well  known  at  the  time  of  hi.s  aiJpointment.  In  no  point  in  this  ies|)ecr 
(lid  Mr.  Monroe  ontstep  Lafayette;  and  of  Lafayette's  course  (ieneral 
Wasliinstoii  wrote  letter  after  letter  of  approval.  General  \Vashin;:ton 
at  that  i)eriod  of  his  administration  souj;lit  to  t)alance  parties  amon^-- 
his  diphjniatic  ajj^eiits  in  the  same  way  that  he  son<;ht  to  balance  paT- 
ties  in  his  Cabinet.  Such  bein^-  tlie  case,  iiothinj;-  was  more  natural 
than  that  he  should  have  sent  to  France  Mr.  Mcuiroe,  whose  attach- 
ment to  Lafayette  and  to  the  new  movements  in  France  was  well 
known,  whde  Mr.  Jay,  whose  French  Iluouenot  descent  pive  him  a 
l)eculiar  dislike  to  France,  while  his  conservatism  led  iiim  to  dinjr  with 
reverence  to  the  English  constitution,  was  sent  to  En.^land.  It  should 
also  be  rememb'^red  that,  as  the  lecords  of  the  Department  show,  Mr. 
Pickering,  who  succeeded  Mr.  lvandol[)Ii  as  Secretary,  left  Mr.  Monroe, 
during  the  most  critical  period  of  his  mission,  without  instructions.  It 
was  natural  that  Mr.  Monroe  should  have  felt  that  he  wa-;  thus  lelt  to  his 
own  judgment;  and  there  is  no  doul)t  that  his  judgment,  atfected  as  it 
naturally  w^as  by  his  enthusiastic  belief  that  the  Fn-nch  revolutionary 
movement  tended  not  merely  to  liberty  but  to  safe  government,  was  that 
he  should  return  with  ardor  the  ardent  welcome  with  which  he  was  re- 
ceived. Nor  even  in  his  addiess  to  the  French  convention,  which  was 
at  the  time  so  much  blamed  for  the  exuberant  fjiendliness  with  which 
it  abounded,  do  we  find  anything  in  the  way  of  conciliation  that  had 
not  the  exam])le  of  General  Washington  {siqyra,  §  47«),  and  has  not 
been  at  least  equaled  by  our  ministers  in  England  in  more  recent  days. 
Nor  can  Mr.  Monrce  be  justly  charged  with  any  deep-seated  prejinlices 
against  England  which  disabled  him  Irom  acting  fairly  as  a  negotiator 
with  France.  Not  more  than  six  years  after  his  mission  to  Fiance  he 
was  sent  by  Mr.  Jefferson  to  negotiate,  in  connection  with  Mr.  Finkney, 
a  treaty  with  England;  and  the  treaty  which  they  agreed  (Ui  was  hvld 
back  from  the  Senate  b^'  Mr.  Jetferson  on  the  ground  that  the  concessions 
it  made  were  too  liberal.  {Infra,  §§  107,  L0()/>.)  Even  alier  the  war  of 
1812,  when  the  burning  of  Wasliington  by  the  Ih-itish  was,  to  say  the 
least,  not  calculated  to  increase  the  kindly  feelinu-s  of  Mr.  Madison's 
Cabinet  to  Great  Britain,  v.e  hnd  ^Ir.  ?kIonroe,  as  Secretary  of  State,  and 
afterwards  as  President,  pursuing  towards  Great  Britain  a  course  whose 
moderation  ami  courtesy  no  one  questioned;  and,  as  aj)pears  by  his  pa- 
pers on  tile  in  the  Department  of  State,  h<^  was  can  ful  to  insist  on  exam- 
ining the  documents  sent  to  England  by  Mr.  J.  Q.  Adams,  as  Secretary  of 
State,  for  the  purpose  of  striking  from  them  acerbities  in  which  .Mr. 
Adams  was  sujtposed  to  have  a  temlency  to  indulge  in  that  j)articularcor- 
respondence.  It  would  be  diOicult,  taking  .Mr.  .Monroe's  whole  history  in 
consideration,  to  fasten  on  anything  in  his  conduct  in  Paris  in  175»t  which 
is  inconsistent  with  his  duties  as  the  minister  of  a  neutral  jtower. 

Mr.  Monroe's  addioss  to  tln^  l-'reiicli  DiiTitory  mi  Dec.  ;iU,  ITKC,  on   iiifst-nf iii>: 

his  letter  of  recall,  with  the  reply  ot  the   Direetory,  are  given  in    (nil  In 
1  Am.  St.  Pap.  (For.  Eel.),  747,  and  is  noticed  siijira,  ^  fro. 
Mr.  Monroe's  letter  to  the  Secretary  of  State,  of  Sept.  ic,  171>5,  in  reply  to  the 

censures  of  his  course  by  the  Department,  is  given  in  full  in  1  .Km.  St. 

Pap.  (For.  Rel.),  742. 
As  to  the  embarrassments  of  the  mission  of  the   United  States  in  France  iu 

1708,  consequent  on  the  attempts  of  Talleyrand  to  discriminate  between  the 

ministers  on  the  basis  of  their  jtarty  relations,  see  '2  Life  of  <ierry,  liK), /. 

Infra,  ^  U-^,  ff. 
As  to  Genet's  interference  iu  politics,  see  sujira,  ^  79,  84. 

097 


§  106.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Ill  1804  Yrnjo,  minister  from  Sj)ain,  was  (^liajord  with  the  attempt  to 
purchase  the  insertion  in  a  ne\vs|ia])er  in  Philadelphia  of  an  aiticle  de- 
fending the  ])osition  of  Spain  and  critieisinii-  the  adminisli-ation.  He 
re])lied  that  such  an  act  was  not  nnusnal  in  (^liplomacy.  that  there  was 
no  attempt  to  interfere  with  the  domestic  aftaiis  of  the  United  Stat(^s, 
that  it  ^as  simply  issninj^'  a  document  expository  of  the  views  of  his 
Government.  I'his  not  beino-  regarded  as  an  adetptate  delense,  keep- 
ing the  characterof  the  article  in  view,  his  recall  was  asked  for.  Yrujo, 
however,  declined  to  leave  his  post,  and  used  ofi'eiisive  language 
towards  the  United  States.  (See  supra,  §  <S4.)  Mr.  J.  Q.  Adams,  ui)oii 
this  action,  introduced  into  the  Senate  a  bill  giving  the  President  au- 
thority to  order  toreigu  ministers  to  leave  the  country  at  his  discretion  ; 
a  measure,  however,  which  was  not  jiressed  to  a  vote. 

Explanations  of  the  reijuest  for  Yrujo's  recall,  based  on  his  interference 
with  i)olitics  in  Philadelphia  as  well  as  his  insulting  tone  to  the  Gov- 
ernment, are  found  in  instructions  by  Mr.  Madison  to  Mr.  Pinckney  of 
April  10,  1.S04,  and  by  Mr.  Madison  to  Mr.  Monroe  of  May  23,  180.3. 
On  January  20,  1807,  Mr.  Madison  informetl  Mr.  Erving  that  unless 
Yiujo  should  leave  the  country  extreme  measures  would  be  necessary 
to  remove  him;  and  a  statement  was  inclosed  (v\hich,  however,  cannot 
now  be  found)  giving  the  details  of  his  misconduct.  On  May  1,  1807, 
j\lr.  Madison  informed  IMr.  Erving  that  Yrujo  had  announced  his  de- 
j)arture,  but  had  made  no  preparations  to  leave;  and  on  October  18, 
1807,  his  continued  stay,  with  its  incidents  of  annoyance  to  the  admin- 
istration, is  announced  by  Mr.  Madison  to  Mr.  Erving,  though  it  is 
mentioned  that  Foronda  was  then  received  as  charge  d'affaires.  No 
note  of  Yrujo  later  than  February  6,  1800,  is  on  file  in  the  Depart- 
ment.    (As  to  Yrujo,  see  further  §§  84,  94,  107.) 

•  As  to  Cobbett's  attack  on  Yrnjo  see  Wliart.  St.  Tr.,  322. 

"There  is  reason  to  believe  that  Yrujo  (the  Spanish  minister)  has 
worked  against  us  with  all  his  might,  seeking  to  advance  himself  by 
flattering  the  prejudices  of  his  Government,  instead  of  consulting  its 
oblig^itious  or  its  true  interest.  He  behaved  so  badly  as  to  require  the 
recall  signified  in  my  public  letter.  (Charles)  Pinckney's  recall  has  been 
asked  by  the  Spanish  Government,  and  a  letter  of  leave  goes  to  him." 

Mr.  Madison,  Sec.  of  State,  to  Mr.  Monroe  (confidential),  Nov.  9, 1804.  2  Madi- 
son's Writings,  209. 

The  intercepted  letter  of  Mr.  Onis,  Spanish  minister,  on  ])o]itical  parties  in 
the  United  States,  dated  Jan.,  1811,  is  given  iu3  Am.  St.  Pap.  (For.  Kel.),  404. 

Mr.  Van  Buren's  message  of  Feb.,  1838,  containing  a  translation  of  a  pamphlet 
published  in  Spanish  by  Mr.  Gorostiza,  previously  minister  from  Mexico 
to  the  United  States,  before  his  departure  from  the  United  States,  with  cor- 
respondence relative  thereto,  is  given  in  House  Ex.  Doc.  No.  190,  2.3th  Cong., 
2d  sess. 

"  The  plain  duty  of  the  diplomatic  agents  of  the  United  States  is 
scruj)ulously  to  abstain  from  interfering  in  the  domestic  politics  of  the 
countries  where  they  reside.  This  duty  is  specially  incumbent  on  those 
who  are  accredited  to  Governments  mutable  in  form  and  in  the  persons 
by  whom  they  are  administered.  By  taking  any  open  ])art  in  the 
(Jomestic  affairs  of  such  a  foreign  country  they  must,  sooner  or  later, 

693 


CHAP.  IV.]  OFFICIAL    INTERCOURSE.  [§  107. 

render  themselves  obnoxious  to  the  Exceutivc  ;mtlioiity.  \vlii»-!i  r.iiii  .w 
fail  to  impair  tbcir  nsofnlncss." 

]Mr.  Hiicluuian,  See.  of  .Stiitc,  to  Mr.  SIiIcI.Ik,  Aiij;.   7,  Ih.Ih.     M.^.S.  IhhI.,  V. h. /. 

The  duty  of  diplomatic  representatives  of  the  Unit<Ml  States  in  forcifrn 
countries  in  times  of  in.surreotion,  is  s(;rui)ulously  to  avoid  intfrliTcncc 
in  the  stiuiiyle,  and  toreluseto  acknowledjie  insur^ienl  autliorilics  until 
permanently  established. 

Mr.  Marcy,  Sec.  of  Sf  at<!,  to  Mr.  Wheeler,  Nov.  «,  18.^)5.     MSS.  Inst.,  Am.  St. 
Mr.  Seward'H  report  of  Dec.  29.  18(i'J,  on  the  "alleged  interference  of  our  min- 
ister to  Mexico  iu  favor  of  the  French,"  is  given  in  House  Ex.  Doc.  No.  23, 

:37th  Coug.,  ;}d  sess. 

"One  of  the  essential  qualifications  of  a  diplomatic  a^ent  is  to  observe 
at  all  times  a  proper  reserve  in  regard  to  the  aflCairs  of  his  Govcrniiicnt; 
and  the  knowledge  ot  these  aflairs,  possessed  by  persons  belong  ng  to 
the  legation,  must  be  regarded  as  confidential. 

"It  is  forbidden  to  diplomatic  agents  abroad  to  participate  in  any 
manner  in  the  political  concerns  of  the  country  of  their  residence;  and 
they  are  directed  especially  to  refrain  from  public  expression  of  opin- 
ions upon  local,  political,  or  other  questions  arising  within  their  Juris- 
diction. 

"It  is  deemed  advisable  to  extend  a  similar  i)rohibition  against  i»ul)lic 
addresses,  except  upon  exceptional  festal  occasions  in  the  country  of 
ofiicial  residence.  Even  upon  such  occasions  the  utmost  caution  must 
be  observed  in  touching  upon  political  matters. 

"■The  statute  further  forbids  diiilomatic  and  consular  officers  from 
recommending  any  i)erson  at  home  or  abroad  for  any  emi)loym' nt  of 
trust  or  profit  under  the  Governments  to  which  they  are  accredited. 
This  ])rohibition  against  recommendation  for  office  is  hereby  extended 
to  oflices  under  tlie  United  States;  it  does  not,  however,  prevent  a 
diplomatic  agent  from  recommending  any  per.son  whom  he  may  deem 
suitable  and  competent  to  fill  a  subordinate  office  in  or  under  his  own 
mission." 

Printed  Pers.  lust..  Dip.  Agents,  1885. 

As  to  protection  by  consuls,  see  infra,  ^  122. 

XXXI.   COURTESY,  FAIRNESS,  AND  SOCIAL  CONFORMITY  EXPECTED. 

(1)  Official  intercourse. 

§  107. 

"Etiquette,  when  it  becomes  too  glaring  by  attectation,  imimses  no 
longer  either  upon  the  populace  or  ui)on  the  courtiers,  but  becomes 
ridiculous  to  all.     This  will  soon  be  the  case  everywhere  with  resjject 

to  American  ministers.     To  see  a  minister  of  such  a  state  as and 

assume  a  distant  and  mysterious  air  towards  a  minister  of  the 

United  States,  because  his  court  has  not  yet  acknowledged  their  inde- 
pendence, when  his  nation  is  not  half  opial  to  America  in  any  one  attri- 
bute of  sovereignty,  is  a  spectacle  of  ridicule  to  any  man  who  sees  it. 

"1  have  had  the  honor  of  making  and  receiving  visits  in  a  private 
character  from   the  Spanish   minister  here,  whose  behavior   has  beeu 

C99 


§  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

polite  enough.  He  was  pleased  to  make  rae  some  very  high  compli- 
ments upon  our  success  here,  which  he  considers  as  the  most  important 
and  decisive  stroke  which  could  have  been  struck  in  Europe." 

Mr.  J.  Adams  to  Mr.  Livingston,  Apr.  23,  1782.     7  John  Adams'  Works,  574. 

•'The  Comte  Sarsfield  began,  as  usual,  when  we  were  alone,  to  give 
mo  a  lesson  of  etiquette;  this  is  a  trait  in  his  character;  no  man  tuore 
attentive  to  the  rules  of  ceremony  and  formality;  no  man  more  precise. 
He  says  that  when  I  made  an  entertainment  I  should  have  placed  the 
and)assador  of  France  at  my  right  hand  and  the  minister  of  Spain  at 
my  left,  and  have  arranged  the  other  princii)al  personages;  and  when 
I  rose  from  the  table,  T  should  have  said:  'Messieurs,  v^oudriez  vous,' 
&c.,  or  'Monsieur  le  Due,  voudriez  vous,'  &c.  All  this,  every  one  sees, 
is  a  la  Frangaise;  but  it  is  very  little  regarded  here,  and  it  was  because 
it  is  generally  neglected  here  that  I  neglected  it.  But  the  Comte,  in 
every  affair  of  dress,  billets,  rank,  &c.,  has,  from  my  first  acquaintance 
with  hnn,  ever  discovered  such  a  minute  attention  to  little  circum- 
staiu;es.  How  is  it  possible  to  reconcile  these  trifling  contemplations 
of  a  master  of  ceremonies  with  the  vast  knowledge  of  arts,  sciences, 
history,  government,  «&c.,  possessed  by  this  nobleman?  A  habit  of 
linng  in  the  world,  however,  is  necessary,  a  facility  of  living  with  men — 
Fhabitude  de  vivre  avec  les  hommes. 

"It  is  the  fashion  among  the  Dutch  to  arrange  all  the  company  by 
putting  a  card  with  the  name  of  each  gentleman  and  lady  upon  the 
napkins  in  the  plate.  This  I  never  saw  practiced  in  France;  indeed, 
they  attend  but  to  one  person  in  France;  the  feast  is  made  in  honor  of 
one  person;  that  is  the  ton.  Mr.  Visscher,  being  told  by  the  count 
that  he  and  I  were  to  dine  tomorrow  with  General  Van  der  Dussen, 
appeared  surprised,  and  said  that  the  general,  although  he  had  dined 
with  me  and  rode  with  me  on  horseback,  would  not  have  dared  to  have 
invited  me,  if  he  had  not  met  me  at  M.  Boreel's." 

Jolm  Adams'  Diarj-,  Oct.  2,  1782.     3  John  Adams'  Works,  276. 

"  Ranks,  titles,  and  etiquettes,  and  every  species  of  punctilios,  even 
down  to  the  visits  of  cards,  are  of  infinitely  more  importance  in  Europe 
than  in  America,  and,  therefore.  Congress  cannot  be  too  tender  of  dis- 
gracing their  ministers  abroad  in  any  of  these  things,  nor  too  determined 
not  to  disgrace  themselves.  Congress  will  sooner  or  later  find  it  neces- 
sary to  adjust  the  rank  of  all  their  servants  with  relation  to  one  another, 
as  well  as  to  the  magistrates  and  officers  of  the  separate  Governments. 

"For  exan)i)le,  if,  when  Congress  al)Olished  my  commission  to  the 
King  of  Great  Britain  and  my  commission  for  peace,  and  issued  a  new 
commission  ior  peace  in  which  they  associated  four  other  gentlemen 
with  me,  they  had  placed  any  other  at  the  head  of  the  commission  they 
would  have  thrown  a  disgrace  and  ridicule  upon  me  in  Europe  that  I 
could  not  have  withstood.  It  would  have  injured  me  in  the  minds  of 
friends  and  enemies,  the  French  and  Dutch,  as  well  as  the  English. 

"  It  is  the  same  thing  with  states.  If  Mr.  Jay  and  I  had  yielded  the 
punctilio  of  rank,  and  taken  the  advice  of  the  Count  de  Yergennesand 
Dr.  Fra!d<lin,  by  treating  with  the  English  or  Spaniards,  before  we 
were  put  v\]nni  the  equal  footing  that  our  rank  demanded,  we  should 
have  sunk  in  the  minds  of  the  English,  French,  Spaniards,  Dutch,  and 
all  the  neutral  powers.  The  Count  de  Yergennes  cert;:inly  knows  this. 
If  he  does  not,  he  is  not  even  a  European  statesman.  If  he  does  know 
it,  what  inference  can  we  draw  but  that  he  means  to  keep  us  dow  n  if 

700 


CHAP.  IV.]  OFFICIAL    INTERCOURSE.  [§  107. 

he  can  ;  to  keep  liis  hand  under  our  chin  to  piev(  nt   iis  fVoiii  druwninf^, 
but  not  to  lift  our  beads  out  of  water." 

Mr.  J.  Adams  to  Mr.  Livingston,  Nov.  8,  1782.     8  John  Adarua'  Works*,  3. 

"  He  (the  Duke  of  Dorset)  then  toUl  nie  I  must  be  in  London  time 
enough  to  pay  my  respects  to  the  King  on  tlie  4th  of  June,  his  birth- 
day:  that  to  that  end  I  must  carry  over  from  hen(*e  a  tine  new  coat, 
ready-made,  for  that  it  was  a  rule  of  etiquette  there  for  everybody  who 
went  to  court  to  have  new  clothes  upon  that  day  and  very  ri-Ii  ones, 
and  that  my  family  must  be  introduced  to  tlie  Queen.  I  told  him  I  was 
sorry  to  hear  that,  but  that  1  hoped  it  was  not  indispensabh%  for  that 
as  at  the  court  of  Versailles  the  families  of  ambassadors  only  were  re- 
quired to  be  presented,  and  ministers  i)lenipotentiary  and  envoys  had 
their  option,  my  family  had  chosen  to  avoid  it  here  for  many  reasons. 
He  sai^l  it  was  true  that  here  the  etiquette  required  oidy  the  presenta- 
tion of  ambassadresses,  but  in  England  it  was  otherwise,  and  the  ladies 
and  daughters  of  all  ministers  must  be  presented  to  the  (^ueen. 

"I  hope,  sir,  you  will  not  think  this  an  immaterial  or  a  tritling  con- 
versation, when  you  consider  that  the  single  circumstance  of  i)resenting 
a  family  at  court  will  make  a  diflerence  of  several  hundred  pounds  stiM- 
ling  in  my  inevitable  annual  exi)enses.  This  is  not  the  first  serious  lect- 
ure I  have  had  upon  the  subjects  of  etiquette,  and  even  dress.  I  have 
formerly  related  to  you  in  conversation  another  much  more  grave,  which 
I  had  tive  years  ago  from  the  Count  de  Vergennes.  1  believe  I  have 
also  repeated  to  you  similar  exhortations  made  to  u)e  even  by  the  best 
patriots  in  Holland.  There  is  a  certain  ai)pearance  in  i)roi)ortion  to 
rank  which  all  the  courts  of  Europe  make  a  point  of  exacting  from 
everybody  who  is  presented  to  them." 

Mr.  J.  Adams  to  Mr.  Jay,  May  13,  1785.     8  John  Adams'  Works,  2')0. 

"  There  are  a  train  of  other  ceremonies  yet  to  go  through  in  presen- 
tations to  the  Queen  and  visits  to  and  from  ministers  and  ambassadors, 
which  will  take  up  much  time  and  interrupt  me  in  my  endeavors  to  ob- 
tain all  that  I  have  at  heart — the  objects  of  my  instructions.  It  is  thus 
the  essence  of  things  is  lost  in  ceremony  in  every  country  of  Europe. 
We  must  submit  to  what  we  cannot  alter.  Patience  is  the  only  rem- 
edy." 

Mr.  J.  Adams  to  Mr.  Jay,  June  2,  1785.     8  John  Adams'  Works,  259. 

As  to  oflScial  "etiquette"  see,  further,  3  John  Adams'  Works,  27t;,  lUMi;  7  ibid., 
578;  8  ibid.,  3,  4,  39,  250,  251,  259,  3G7,  480,  489,  490. 

"Every  one  who  has  any  knowledge  of  my  manner  of  acting  in  pub- 
lic life  will  be  persuaded  that  I  am  not  accustomed  to  impede  the  dis- 
patch or  frustrate  the  success  of  business  by  a  ceremonious  attention  to 
idle  forms.  Any  person  of  that  description  will  also  be  satisfied  that  I 
should  not  readily  consent  to  lose  one  of  the  most  imjjortant  functions 
of  my  office  for  the  sake  of  preserving  an  imaginary  dignity  ;  but,  i)er- 
haps,  if  there  are  rules  of  proceeding  which  liave  originated  from  the 
wisdom  of  statesmen,  and  are  sanctioned  by  tin'  common  consent  of 
nations,  it  would  not  be  i)rudent  for  a  young  state  to  dispense  with 
them  altogether,  at  least  without  some  substantial  cause  for  so  doing. 
I  have  myself  been  induced  to  think,  possibly  from  the  habits  of  ex- 
perience, that  in  general  the  best  mode  of  conducting  negotiations,  the 

701 


§  107.]  DIPLOMATIC   AGENTS.  [cHAP.  IV. 

detail  and  progress  of  which  might  be  liable  to  accidental  mistakes  or 
unintentional  misrepresentations,  is  by  writing.  This  mode,  if  I  was 
obliged  myself  to  negotiate  with  any  one,*  I  should  still  pursue.  I  have, 
however,  been  taught  to  believe  that  there  is  in  most  polished  nations 
a  system  established,  with  regard  to  the  foreign  as  well  as  the  other 
great  Departments,  which,  from  the  utility,  the  necessity,  and  the  rea- 
son of  the  thing,  provides  that  business  should  be  digested  and  pre- 
pared by  the  heads  of  those  Departments." 

President.  Washingtou  to  Count  de  Moiistier,  May  25,  1789,     10  Washington's 
Writings,  9. 

"Upon  the  whole,  it  was  thought  best  to  confine  my  invitations  to 
official  characters  and  strangers  of  distinction.  This  line  I  have  hitherto 
pursued.  Whether  it  may  be  found  best  to  adhere  to  it  or  depart 
from  it,  must  in  some  measure  be  the  result  of  experience  and  investi- 
gation." 

President  Washington  to  Mr.   Stuart,  July  26,  1769.     10  Washington's  Writ- 
ings, 19. 

"  To  you,  sir,  it  will  be  unnecessary  to  undertake  a  general  delinea- 
tion of  the  duties  of  the  ofiBce  to  which  you  are  appointed.  I  shall, 
therefore,  only  express  a  desire  that  they  may  be  constantly  exercised 
in  that  spirit  of  sincere  friendship  which  we  bear  to  the  English  nation, 
and  that  in  all  transactions  with  the  minister  his  good  dispositions  becon- 
ciliated  by  whatever  in  language  or  attentions  may  tend  to  that  effect. 
With  respect  to  their  Government  or  policy,  as  concerning  themselves 
or  other  nations,  we  wish  not  to  intermeddle  in  word  or  deed,  and  that 
it  be  not  understood  that  our  Government  permits  itself  to  entertain 
either  a  will  or  opinion  on  the  subject." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Pinckuey,  July  11,  1792.     2  Randall's  Life  of 
Jefferson,  59. 

Mr.  Genet's  note  of  September  18,  1793,  to  Mr.  Jefferson,  giving  his 
complaints  of  his  treatment  by  the  Administration,  is  in  1  Am.  St. 
Pap.  (For.  Itel.),  173.  Of  his  treatment  by  President  Washington  he 
complains  as  follows  :  "  I  will  tell  you,  then,  without  ceremony,  that  I 
have  been  extremely  wounded,  sir :  1st.  That  the  Piesident  of  the 
United  States  was  in  a  hurry,  before  knowing  what  I  had  to  transmit 
to  him  on  the  i)art  of  the  French  Republic,  to  proclaim  sentiments  on 
which  decency  and  friendship  should  at  least  have  drawn  a  veil.  2d. 
That  he  did  not  speak  to  me  at  my  first  audience  but  of  the  friendshij) 
of  the  United  States  towards  France,  without  saying  a  word  to  me, 
without  announcing  a  single  sentiment,  on  our  revolution — while  all  the 
towns,  from  Charleston  loPhiladcl])liia,  had  made  the  air  resound  with 
their  most  anh-nt  wishes  for  the  French  Pepublic.  3d.  That  he  had 
received  and  admitted  to  a  private  audience,  before  my  arrival,  Noailles 
aiul  Talon,  known  agents  of  the  French  counter-revolutionists,  who 
hiive  since  had  intimate  relations  r-ith  the  members  of  the  Federal 
Government.  4tli.  That  this  Fust  Magistrate  of  afree  people  decorated 
his  parlor  with  certain  medallions  ot  " Capet '?  and  his  family,  which 

702 


CHAP.  IV.]  OFFICIAL    INTl'RCOURSE.  [§107. 

served  iit  Paris  as  sifznals  of  rallyiiij:."  A  scries  ofotlicr  sjx'cificatioiis 
followed,  relative  to  the  iiiteriialioiial  ruliiijis  of  llic  Admiiiistial  ion. 

As  to  the  inedallioi)  ot  ''(Japet,"  it  uv.iy  he  noticed  Ihat  full  lcn;:lh  |>i(;- 
turcsof  Louis  XVI  and  .Marie  Ahtoinctlc,  i)resi'nlcd  to('on;:rcss  al  Ihe 
close  of  the  American  IJevolntion,  ivinaine(l  jiiinj;  on  the  walls  ol'l.'on- 
^ress  at  Philadel])hia  until  after  the  iMench  revolution.  They  were 
then,  accordinji,-  to  a  letter  of  Mr.  E.  Thornton,  an  attacne  of  tiie  iJriiisli 
lepition,  (Bland-Burftess  papers,  L'3!S,)  dated  .Alarch  0,  17M2,  [jmhahlv 
from  conii)laints  such  as  those  made  aV)ove,  "coveied  with  a  «'urtain." 
i\lr.  Thornton  goes  on  to  say :  "  I  don't,  know  whether  J  mentioned  to 
you  ibrmerly  that  the  key  of  tlie  Bastile,  given  to  a  certain  great  man 
here  (^^'ashillgton)  by  Lafayette,  is  hung  ui)  in  a  glass  fiame  in  the 
juincipal  room  of  the  great  man's  house  with  an  engraving  of  Louis 
XVI,  Le  pafroile  lioi  dcs  Fyan^-ais,  o})posite.  In  the  drawing  room  of 
Mr.  Jefferson  there  are  three  l)usts — of  Fianklin.  Paul  dones,  and  La- 
fayette— three  gentlemen,  the  lirst  of  whom  had  talents  without  viitiie, 
the  second  deserved  hanging,  and  the  last,  not  imi)robal)ly,  may  meet 
the  same  fate."  Nodoubt  the  picture  of  "Capet''  in  Washington's  pa:  lor 
which  gaAe  oftense  to  the  Frenchmen  in  Septem'oer  because  it  was 
thereat  all,  was  a  companion  to  that  which  gave  offense  to  the  I-^nglish- 
iiian  in  June  because  the  inscrii)tion  was  "  patriot  king."  Such  inci- 
dents as  tLese  show  the  diflticult  position  of  Washington  in  trying  to 
steer  a  just  course  between  the  two  rival  missions. 

"No  Government  can  disregard  formalities  more  than  ours.  Ibit 
when  formalities  are  attacked,  wiili  a  view  to  change  jninciples,  ami 
to  introduce  an  entire  independence  of  foreign  agents  on  the  nation 
with  whom  they  reside,  it  becomes  material  to  defend  formalities." 

Mr.  Jefferson,  Sec.  of  State,  to  the  miuiBter  of  France,  Decttmber  9,  171);l,  when 
refn';in;^toaccej)t  foreign  coinniissionK  unless  addressed  to  tlie  United  States, 
or  to  the  President  of  the  United  States.     4  Jetf.  Works,  90. 

■  "Among  Mr.  Jefferson's  pa])ers  was  found  one  indorsed  in  his  hand- 
writing: 'This  rough  paper  contains  what  was  agreed  ui)()n,'  meaning, 
undoubtedly,  what  was  agreed  ui)ou  by  the  President  ami  his  (;al)inet : 

"'I.  In  order  to  bring  the  members  of  so{;iety  together  in  the  first 
instance,  the  custom  of  the  country  has  established  that  residents  shall 
])aythe  first  visit  to  sti-ang<M-s,  aixL, among  strangers,  first  comer.s  to 
later  comers,  foreign  and  domestic;  tiie  character  of  strangers  c«'asnig 
after  the  first  visits.  To  this  rule  there  is  a  single  e\cepti«»ii.  iMueign 
ministers,  fVom  the  necessity  of  making  themselves  known,  pay  the  first 
visit  to  tile  ministers  of  the  nation,  wiiich  is  returned. 

"'II.  When  brought  together  in  society,  all  are  perfectly  eipial, 
whether  foreign  or  domestic,  titled  or  untitled,  in  or  out  of  oflice. 

"'All  otlu'r  observances  are  but  exemi)lifications  of  these  two  prin- 

eifdes  .    . 

uti._ist.  The  families  of  foreign  ministers,  arriving  at  the  seat  ot 
Government,  receive  the  first  visit  fiom  those  of  the  national  nunisters, 
as  from  all  other  residents. 

"'LM.  Members  of  the  legislature,  and  of  the  Judiciary,  imh'peiideiit 
of  their  ofHces,  have  a  right  as  strangers  to  receive  the  lirst  visit. 

ui  i|._ist.  No  title  being  admitted  here,  tho.se  of  foreigners  give  no 
precedeme.  . 

'•'2d.  Difierence  of  grade  among  the  diplomatic  members  gives  uo 

precedence.  ^^^ 


§  107.]  DIPLOMATIC    AGENTS.  [^HAP.  IV. 

"  '  3d.  A  t  public  ceremonies,  to  wliicb  the  Government  invites  the  pres- 
ence of  foreign  ministers  and  tlieirfiunilies,  a  convenient  seat  or  station 
will  be  provided  for  them,  with  any  other  strangers  Invited,  and  the 
families  of  the  national  ministers,  each  taking  place  as  thej^  arrive,  and 
without  any  precedence. 

"  '4tli.  Toniaintain  the principleof  equality,  or  of^^f?/e-we/t%  and  prevent 
the  growth  of  precedence  out  of  courtesy,  the  members  of  the  Execu- 
tive will  practice  at  their  own  houses,  and  recommend  an  adherence  to 
the  ancient  usuage  of  the  country,  of  gentlemen  in  mass  giving  i)rece- 
(lence  to  ladies  in  mass,  in  passing  from  one  apartment  where  they  are 
assembled  into  another.' 

"Tlie  President  had  two  public  days  for  the  reception  of  company, 
the  1st  of  January  and  4th  of  July,  when  his  doors  were  thrown  open 
to  all  who  chose  to  enter  them.  At  other  times,  all  who  chose  were 
permitted  to  call  upon  him  on  business  or  as  a  matter  of  courtesy." 

"2  Randall's  Life  of  Jefferson,  667. 

"Very  soon,  therefore,  after  entering  on  the  office  of  Secretary  of  State 
I  recommended  to  General  Washington  to  establish,  as  a  rule  of  i)rac- 
tice,  that  no  person  should  be  continued  on  foreign  mission  beyond  an 
absence  of  six,  seven,  or  eight  years.  He  approve<l  it.  On  the  only 
subsequent  missions  which  took  place  in  my  time,  the  persons'appoiuted 
were  notified  that  they  could  not  be  continued  beyond  that  period.  All 
returned  within  it  except  Humphreys.  His  term  was  not  quite  out 
when  General  "Washington  went  out  of  office.  The  succeeding  Admin- 
istration had  no  rule  for  anything;  so  he  continued-  Immediately  on 
my  coming  to  the  Administration  I  wrote  to  him  myself,  reminded  Jum 
of  the  rule  I  had  communicated  to  him  on  his  departure;  that  he  had 
then  been  absent  about  eleven  years,  and  consequently  must  return. 
.On  this  ground  solely  he  was  superseded.  Under  these  circumstances, 
your  appointment  was  impossible  after  an  absence  of  seventeen  years. 
Under  any  others  I  should  never  fail  to  give  to  yourself  and  the  world 
proofs  of  my  friendship  for  you,  and  of  my  confidence  in  you.  When- 
ever you  shall  return,  you  will  be  sensible  in  a  greater,  of  what  f  was 
in  a  smaller,  degree,  of  the  change  in  this  nation  from  what  it  was  when 
we  both  left  it  in  1784.  We  return  like  foreigners,  and,  like  them,  re- 
quire a  considerable  residence  here  to  become  Americanized. 

'•  There  is  no  point  in  which  an  American,  long  absent  from  his  cou,n- 
try,  wanders  so  widely  from  its  sentiments  as  on  the  subject  of  its  for- 
eign affairs.  We  have  a  perfect  horror  at  anything  like  connecting  our- 
selves with  the  politics  of  Europe.  It  would  indeed  be  advantageous 
to  us  to  have  neutral  rights  established  on  a  broad  ground;  but  no  de- 
pendence can  be  placed  in  any  European  coalition  for  that.  They  have 
so  nuuiy  otlit  r  by-interests  of  greater  weight  that  some  one  or  other 
will  always  be  bought  off." 

President  Jefferson  to  Mr.  Short,  Oct.  3,  1801.     2  Randall's  Life  of  Jefferson,  672. 

See  3  Schoiiler's  Hist.  U.  S.  122,  instancing  illustrations  of  Mr.  Jefferson's  posi- 
tion above  stated. 

704 


CHAP.  IV.]  OFFICIAL    INTERCOUUSF.  [§  107. 

"Ill  the  intercourse  between  tlie  Seeretaries  ami  Att(»rney-(Je!i- 
eral  of  this  Government  and  the  ministers  of  loiei<,ni  powers  the  period 
of  the  arrival  of  either  nt  the  seat  of  CJoverninent  is  not  considered. 
The  tirst  visit  is  expected  from  the  foreign  ministers.  This  r.ile,  it  is 
believed,  is  invariably  observed  by  the  Governments  of  Europe,  and 
seems  to  grow  out  of  the  mission  itself.  It  is  i)roper  that  the  minister 
sent  ou  a  foreign  mission  should  make  himself  known  to  the  (iovern- 
nient  to  which  he  is  addressed,  and  that  he  should  extend  his  visit  to  all 
the  chief  officers  of  that  Government.  Jt  is  eciually  correct,  on  any 
change  in  the  members  of  the  Administration,  that  the  first  visit  should 
be  paid  to  those  who  may  be  brought  into  jxnver.  The  intercour.se 
must  be  opened,  and  that  ought  to  be  conuiienced  by  the  foreign  min- 
isters, the  principle  being  the  same  between  these  parties  as  between 
the  Government  and  the  foreign  ministers  on  their  first  arrival  in  the 
country.  The  rule  which  i)revails  between  persons  in  jtrivate  life  is 
not  applicable  to  this  case.  This  latter  rule  varies  in  ditienint  places, 
and  is  founded  ou  no  fixed  principle." 

Mr.  Mouroe,  Sec.  of  State,  to  Mr.  de  Daschkofl",  Mar.  9,  l~i:3.     ilSS.  Nott-H, 
For.  Leg. 

"  In  England  the  secretaries  of  the  Government  take  rank  of  foreign 
ministers,  as  do  the  family  of  the  sovereign,  the  arcii  <'haii(;('lior,  the 
arch -treasurer,  and  others.  It  is  believed  that  the  marshals  of  FraiM;e 
would  all  take  rank  of  the  foreign  ministers  if  they  were  brought  into 
the  same  circle.  This,  however,  is  not  assinted  with  confidence  ;  a 
knowledge  of  detail  is  not  possessed. 

"  The  same  rules  are  supposed  to  exist  at  St.  I'etersburg  and  at  other 
European  courts — the  same  precedence  to  be  given  to  the  secretaries  of 
the  Government  over  foreign  ministers  of  every  grade,  and  to  all  those 
distinguished  persons  who  take  rank  of  the  secretaries  of  the  Govern- 
ment. Precise  information  of  the  rules  adopted  at  St.  Petersburg  is 
also  wanting. 

"The  secretaries  of  the  Governments  above  mentioned  n-tmii  the 
visits  of  ambassadors  only.     Their  wives  follow  their  example. 

"The  visits  of  the  American  ministers  in  England  and  Fnmce  to  the 
secretaries  of  state  were  in  many  instances  not  returned,  nor  were  tlio.M- 
of  their  wives  to  the  families  of  the  secretaries  of  state.  The  omission 
was  imputed  to  the  circumstance  that  our  r«'piesentalives  were  minis- 
ters plenipotentiary  and  not  ambassadors. 

"The  Government  of  the  United  States  adopts  the  rule  of  the  Euro- 
pean Governments,  with  this  ex(!eption,  that  the  heads  of  the  Govern- 
ment return  the  first  visit  of  foreign  ministers,  without  regard  to  grade, 
and  that  their  wives  return  every  visit." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Seruricr,  May  5,  lbl4.    .MSS.  Notes,  For.  Leg. 

"  I  have  iust  returned  from  Carleton  House,  it  being  the  seventh  day 
in  succession  that  I  have  rode  into  town  ou  purpose  to  make  my  iuqui- 

S.  INIis.  1GL>— VOL.  I 45  ^^^ 


§  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

ries  there  in  the  usual  mauuer  respecting  the  present  King's  health. 
The  answer  to-day  is  that  he  is  out  of  all  danger.  These  are  attentions 
which  it  it  is  believed  he  ^A'ill  be  extremely  scrupulous  in  exj)ecting  of 
foreign  ministers.  Indeed,  the  ceremonious  inquiries  which  we  are 
obliged  to  make,  under  present  circumstances,  throughout  all  the  circles 
of  the  royal  family  keep  our  carriages  the  livelong  day  in  motion  over 
the  rattling  stones.  In  mine  I  have  just  had  a  break-down.  You  know 
how  dispersed  they  live,  from  stable-yard  to  Kensington  Palace,  and 
how  many  of  them  there  are.  1  have  often  thought  since  I  came  here 
that  we  maintain  our  diplomatic  intercourse,  at  least  with  this  Govern- 
ment, upon  terms  of  great  inequality.  I  have  yet  to  learn  in  what 
point  our  Republic  is  behind  this  monarchy  in  dignity,  and  yet  ichat 
are  not  the  acts  of  ceremonious  homage^  to  give  them  no  other  appellation^ 
ichich  the  minister  of  the  former  is  compelled  to  go  through  herefrom  which 
the  British  minister  with  us  is  exempt !  " 

Mr.  Rush,  minister  at  London,  to  Mr.  Monroe,  President,  Feb.  6,  182G.     Couti- 
dential.     Monroe  Pap.,  Dept.  of  State. 

"Nor  is  there  an  individual  who  has  attended  at  all  to  the  progress 
of  the  dispute  who  does  not  see  that  it  was  embittered  from  the  first, 
and  wantonly  urged  to  its  present  fatal  issue  by  the  insolent,  petulant, 
and  preposterous  tone  of  those  very  individuals  who  insisted  upon  that 
miserable  experiment  (orders  in  council)  and  plunged  their  own  country 
in  wretchedness,  only  to  bring  down  upon  it  the  reluctant  hostility  of 
its  best  customers  and  allies.  If  those  mischievous  and  despicable  coun- 
cils were  once  cordially  renounced ;  if  this  paltry  and  irritating  tone  were 
forever  interdicted  at  our  public  otfices;  if  the  negotiations  were  com- 
mitted to  a  man  acceptable  to  the  Americans,  and  free  from  the  suspi- 
cion of  insincerity  which  our  late  diplomatic  communications  with  them 
have  so  naturally  excited,  we  are  fully  persuaded  that  a  speedy  and  a 
honorable  termination  might  yet  be  put  to  this  unnatural  contest,  which, 
if  it  be  purely  ruinous  and  disreputable  to  us,  i)romises  also  to  be  so 
much  more  detrimental  than  beneficial  to  our  opponents." 

Edinburgh  Rev.,  Nov.  1812,  Vol.  20,  459. 

As  to  the  tone  of  the  correspondence  with  Mr.  Canning,  Mr.  J.  Q. 
Adams,  Secretary  of  State,  in  a  confidential  letter  to  Mr.  Monroe,  Pres- 
ident, August  3,  1821,  writes  : 

"  I  am  afraid  you  will  again  think  my  draft  unnecessarily  harsh,  and 
if  so  (I)  request  of  you  to  strike  out  everything  which  may  be  justly 
esteemed  of  that  character.  But  I  think  you  will  observe  little  delicacy 
towards  the  American  Govern n)ent  in  the  tone  of  his  (Canning's)  note. 
I  believe  it  to  be  important  to  hold  up  constantly  on  our  i)art  of  the 
correspondence  the  nature  of  our  objections  to  the  proposals  of  Great 
Britain;  and  th^re  is  so  much  of  a  scolding  in  the  remarks  upon  our  de- 
clining their  proposals,  and  upon  our  ottered  substitute,  that  I  thought 
a  spirited  notice  of  them  due  injustice  to  ourselves." 

Monroe  Pap.,  Dept.  of  State. 

"  Our  disposition  to  discuss  seems  to  have  augmented,  and  the  spirit 
of  conciliation  has  manifestly  been  abandoned  in  our  councils.  "\V»^are 
determined  to  say  harsher  things  than  are  said  to  us,  and  to  have  the 
last  word.  Where  this  temper  will  lead  us  cannot  be  distinctly  foreseen. 
We  are  now  on  bad  terms  with  the  principal  maritime  states,  and 
perhaps  on  the  brink  of  a  rupture  with  Kussia.    *     *     *     l  have  labored 

706 


CHAP.  IV.]  OFFICIAL    INTERCOURSE.*  [§  107. 

to  restrain  this  predominant  disjtosition  of  tlir  Govoriirnent, /y(// /^n-c 
succeeded  only  partiaUy  in  softening  the  asperities  which  inv(trinhly predtnn- 
inate  in  the  official  notes  of  the  kStale  Department.  If  tlicHc  noti's  had 
been  pennitted  to  remain  as  orij-inally  diatt^'d,  we  should,  I  believe, 
have  before  this  time  been  unenibarrassed  by  dii)loiiiatic  relations  wiih 
more  than  one  power.  The  tendency  to  estran^^e  us  from  all  forei;,'n 
powers,  whieli  the  style  of  the  notes  of  the  State  I)e])artment  has  uni- 
formly liad,  has  been  so  often  demonstrated,  yet  so  often  permitted, 
that  I  have  almost  given  up  the  idea  of  maintaining  friendly  relations 
with  those  powers." 

Mr.  Crawford,  Sec.  of  the  Treasury,  to  Mr.  Gallatin,  luinistor  at  Paris,  May  1!J, 
1«22.    2  GaUatiQ's  Writings,  241. 

Mr.  Crawford's  antagonism  to  Mr.  \dams,  both  being  candidates  for 
succession  to  Mr.  Monroe,  in  whose  Cabinet  they  were,  was  at  this  time 
avowed.  It  is  certain,  however,  that  Mr.  Adams's  negotiations  with 
Great  Britain  and  France  failed  on  points  as  to  which  the  administration 
of  General  Jackson  subsequently  succeeded.  Ti)at  this,  notwithstand- 
ing Mr.  Adams's  high  public  spirit  and  matchless  dialectic  skill,  may  be 
attributed  to  want  of  tact  and  of  suitable  recognition  of  the  character- 
istics of  those  with  whom  he  had  to  deal,  is  illustrated  by  the  success  of 
the  subsequent  negotiations.  Participation  in  the  West  Indian  coui- 
merce  was  refused  by  Great  Britain  when  demanded  by  Mr.  Adams  as 
aright;  it  was  granted  to  General  Jackson  when  aske<l  as  an  ecjuivalent. 
Payment  of  iSTapoleon's  spoliations  was  refused  to  Mr.  Adams  by  Louis 
XVIII when  it  wasmadethesubjectof  continuousdiplomatic  irritation; 
it  was  granted  to  General  Jackson  by  Louis  Philippe  when  it  was  the 
subject  of  peremptory  through  courteous  demand. 

"At  these  audiences  (those  of  President  Monroe  with  foreign  minis- 
ters at  Washington)  the  President  observes  the  usual  forms  practiced 
by  Euroi)ean  sovereigns  on  similar  occasions;  that  is,  he  receives  them 
standing,  dressed  in  a  half  military  uniform  or  a  full  suit  of  black.  The 
ministers  are  in  full  court  dresses.  He  stands  in  the  center  of  the  draw- 
ing-room, and  I  accompany  them,  keeping  on  the  right  hand.  On 
receiving  the  letter  the  President  hands  it,  unopened,  to  me.  •  •  • 
The  President  has  a  general  answer  to  the  short  addresses  which  the 
ministers  make  in  delivering  these  letters,  viz:  'That  the  United  States 
take  a  great  interest  in  everything  that  concerns  the  happiness  of  their 
sovereign,'  with  very  little  variation  adai)ted  to  each  particular  case. 
He  makes  no  other  conversation." 

4  Memoirs  of  J.  Q.  Adams,  314. 

"  There  is  one  difference  in  the  correspondence  of  all  the  foreign  min- 
isters here  from  that  which  is  usual  in  Euroi)e,  they  write  letters,  instea*! 
of  notes,  in  the  first  person  instead  of  the  third.  The  etlect  ot  tins  dit- 
ference  upon  style  is  greater  than  any  one  not  habituated  to  both  modes 
would  imagine.'  *  *  *  Anoth<'r  difference  is  that  we  always  use  our 
own  language.  Onis,  in  return,  always  writes,  even  to  the  most  trivial 
notes  of  compliment,  in  Si)anish.  Bagot,  of  course,  writes  in  English, 
and  the  other  foreign  ministers,  except  Correa,  write  in  Irencli;  he 
always  writes  in  English." 

4  Memoirs  of  J.  Q.  Adams,  ">'27. 

"  In  a  private  letter  which  I  wrote  to  the  President  about  two  months 
ago  I  mentioned  that  I  was  informed,  through  a  respectable  channel, 

707 


^  107.]  •      DIPLOMATIC    AGENTS.  [CHAP.  IV, 

that  one  of  the  King's  ministiTs  had,  ;il)out  the  time  that  the  order  in 
council  of  July  last  was  decided  upon,  ex})re8sed  his  great  dissatisfac- 
tion at  tlie  hmguage  of  the  Government  of  the  United  States  in  their 
dii)h»matic  intercourse  with  Great  Britain,  to  which  he  added  that  the 
United  States  seemed  as  if  they  wished  to  take  an  undue  advantage  of 
the  temporary  distresses  of  England,  and  that  it  was  time  for  her  to 
make  a  stand  and  to  show  her  displeasure.  Satisfied  that  nothing  offen- 
sive whatever  could  be  found  in  the  diplomatic  coirespoudence  proper, 
either  here  or  at  Washington,  I  tiionght  that,  however  extraordinary  it 
might  appear,  the  British  Government  might  have  taken  offense  at 
some  expressions  in  Mr.  Adams's  instructions  to  Mr.  Eush,  which  would 
naturally  be  written  with  more  freedom  of  style  tban  letters  addressed 
to  a  British  minister.  In  this  conjecture  it  now  appears  that  I  am  mis- 
taken. *  *  *  I  have  stated  in  a  former  dispatch  my  conversation 
of  the  5th  instant  with  Mr.  Canning,  in  which  he  used  the  same  language 
and  nearly  the  same  words  in  reference  to  Mi .  Baylies's  report  on  the 
territory  west  of  the  Stony  Mountains.  It  is  most  undoubtedly  that 
report  which  has  given  great  offense,  and  I  am  apt  to  think  that,  though 
not  the  remote  or  only,  it  was  the  immediate,  cause  of  the  order  iu 
council." 

Mr.  Gallatiu,  miuibter  at  Paris,  to  Mr.  Clay,  Sec.  of  State,  Nov.  27, 1826.     2  Gal- 
latin's Works,  342. 

Mr.  Adams,  in  commenting  on  the  above,  said  (waiving  the  question 
of  regarding  any  other  authority  than  the  State  Department  as  repre- 
senting the  Government),  that  it  was  about  as  rational  to  make  the 
Administration  responsible  for  Mr.  Baylies,  then  in  opposition,  as  it 
would  be  to  treat  Mr.  Canning  as  responsible  for  the  utterances  iu  Par- 
liament of  Mr.  Brougham  or  Mr.  Hume. 

President  J.  Q.  Adams  to  Mr.  Gallatiu,  March  20,  1827.     2  Gallatin's  Writing.s, 

367. 
Thataforeign  minister  cannot  in  bis  correspondence  takenctice  of  the  domestic 

politics  of  the  country  of  his  mission,  see  supra,  §§  79,  106. 

The  President  '-would  have  been  better  satisfied  if  you  had  never  al- 
lowed yourself  to  employ,  in  your  intercourse  and  correspondence  with 
the  Brazilian  Government,  provoking  or  irritating  exj)ressions.  These, 
he  thinks,  ought  always  to  be  avoided." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Eaguet,  Jan.  20,  1827.     MSS.  Inst.,  Ministers. 
Br.  and  For.  St.  Pap.,  vol.  15,  1128. 

''The  United  States  may  in  their  diplomatic  intercourse  have  been 
guilty  of  much  cold  argumentation,  never,  to  my  knowledge  (excepting 
Pickering  v.  Adet),  of  any  want  of  the  usual  courtesy  and  civility. 
The  charge  is  quite  untrue  as  to  the  correspondence,  &c.,  with  Great 
Britain,  since  the  treaty  of  Ghent.  See,  in  the  additional  documents  on 
colonial  intercourse,  laid  before  Congress  on  28th  Ai)ril  last.  No.  259, 
Lord  Dudley's  declaration,  at  bottom  of  page  42^  *  *  *  and  I  do 
l-noic  that  the  British  Government  was  equally  pleased  with  the  tone 
and  manner  of  Mr.  Rush  during  the  whole  of  his  mission  and  negotia- 
tions. But  we  .publish  everything,  and  the  instructions  of  a  Secretary 
of  State  to  an  American  minister  abroad  must  be  explicit,  and  may  not 
708 


CHAP.  IV.]  OFFICIAL    INTERCOURSK.  [§  107. 

always  be  clothed  iu  the  same  polite laiiguajje  towards  a  fbicj^in  nation 
which  is  used  in  a  diplomatic  note.-' 

Mr.  Gallatin  to  Mr.  Everett,  Aug.  C,  1S28.      '2  OiillnlinV  Writiiiyn,  400. 

In  Lord  Dudley's  note  to  Mr.  Gallatin,  llic  i)assai,'e  referred  to  is  as 
follows:  "The  undersigned  takes  pleasure  in  recognizing  in  both  these 
letters  of  Mr.  Gallatin,  and  esi)ecially  in  the  in(|uiiy  '.vhich  closes  the 
second  of  them,  the  same  spirit  of  good  will  and  (•onciliation  w  hicli,  iu 
the  midst  of  discussions  involving  no  small  difference  of  opinion,  has 
characterized  Mr.  Gallatin's  correspondence  with  the  liritish  (lo\ern- 
ment." 
Ibid. 

"  In  all  discussions  between  Government  and  Government,  whatever 
may  be  the  difierences  of  opinion  on  the  facts  or  principles  brought 
into  view,  the  invariable  rule  of  courtesy  and  justice  demands  that 
the  sincerity  of  the  opposing  party  in  the  views  which  it  entertains 
should  never  be  called  in  question.  Facts  may  be  denied,  deductions 
examined,  disproved,  and  condemned,  without  just  cause  of  offense, 
but  no  impeachment  of  the  integrity  of  the  Government  in  its  reliance 
on  the  correctness  of  its  own  views  can  be  permitted  without  a  total 
forgetfulness  of  self  respect." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Livingston,  Mar.  .5,  lS'.ib.     MSS.  Inst.,  France. 

The  United  States  Government  will  frankly  and  promi)tly  disavow  in- 
decorous language  used  in  variance  with  their  instructions  by  its  diplo- 
matic agents  to  the  Governments  to  which  thej;  are  accredited. 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Ellis,  Nov.  IG,  18:i0.     MSS.  Inst.,  M.x. 

The  Mexican  minister  of  foreign  affairs  having  addressed  directly 
to  the  Secretary  of  State  (Mr.  Webster)  a  letter  which  the  President 
considered  "derogatory  to  the  character  of  the  United  States  and 
highly  offensive,"  the  President  directed  "that  no  other  answer  be 
given  to  it  than  the  declaration  that  the  conduct  of  the  Government  of 
the  United  States,  in  regard  to  the  war  between  Mexico  and  Texas, 
having  been  always  hitherto  governed  by  a  strict  and  irni)artial  regard 
to  its  neutral  obligations,  will  not  be  changed  or  altered  in  any  respect 
or  in  any  degree.  If  for  this  the  Government  of  Mexico  shall  see  lit  to 
change  the  relations  at  i)resent  existing  between  the  two  umntries,  the 
responsibility  remains  with  herself." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Thompson,  July  i:!,  l^A2.     MSS.  Inst.,  Mc,\.: 
6  Webster's  Works,  459. 

When  a  foreign  minister  uses  in  his  correspondence  with  the  Depart- 
ment language  offensive  to  this  Government  no  further  corresixnulence 
with  him  will  be  maintained. 

"During  the  Presidency  of  IMr.  :\radison,  when  the  language  of  a 
British  minister,  Mr.  Jackson,  residing  in  this  country,  had  prov(Ml  of- 

709 


^  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

fensive  to  this  Government,  that  minister  was  promptly  informed,  with- 
out even  first  submitting  his  correspondence  to  his  own  Govermnient, 
that  no  furtlier  communications  would  be  received  from  him,  and  the 
reason  for  the  step  was  afterwards  made  known  to  his  Government. 
Mr.  Jackson  himself,  in  defending  the  positions  he  had  taken,  accom- 
panied his  observations  with  the  remark  that  '  beyond  this  it. suffices  that 
I  do  not  deviate  from  the  respect  due  to  the  Gorernment  to  which  I  am  ac- 
credited.^ How,  then,  was  this  matter  regarded  at  the  British  foreign 
oflBce,  at  the  head  of  which,  at  that  time,  was  Lord  Wellesley.  His 
lordship,  to  whom  the  correspondence  had  been  submitted,  expressed 
the  concern  of  His  Majesty  that  the  interruption  of  the  intercourse  had 
taken  place  by  the  command  of  this  Government  before  it  had  been 
possible  for  His  Majesty,  by  any  interposition  of  his  authority,  to  mani- 
fest his  invariable  disposition  to  maintain  the  relations  of  amity  with 
the  United  States.  He  conveyed  the  most  i)ositive  assurances  from  Mr. 
Jackson  that  it  had  not  been  his  purpose  to  give  offense  to  the  United 
States  Government  by  any  expression  contained  in  his  letters,  or  by  any 
part  of  his  conduct.  He  suggested,  indeed,  that  a  better  and  more 
usual  course  would  have  been  to  convey  to  his  Government  a  formal 
complaint  against  the  minister  with  a  view  to  suitable  redress.  And 
although  he  said  His  Majesty  had  not  marked  with  any  expression 
of  displeasure  the  conduct  of  Mr.  Jackson,  who  had  not  appeared  to 
him  on  the  occasion  to  have  committed  any  intentional  offense  against 
the  Government  of  the  United  States,  yet,  as  he  was  always  disposed 
to  pay  the  utmost  attention  to  the  wishes  and  sentiments  of  states  in 
amity  with  him,  he  had  directed  the  return  of  Mr.  Jackson  to  England. 
And  in  further  testimony  of  a  sincere  desire  to  cultivate  an  intercourse 
with  the  United  States  on  the  most  friendly  terms,  his  lordship  added, 
that  he  was  authorized  to  assure  this  Government  that  His  Majesty 
was  ready  to  receive,  with  sentiments  of  undiminished  amity  and  good 
will,  any  communication  which  the  Government  of  the  United  States 
might  deem  beneficial  to  the  mutual  interests  of  both  countries,  through 
any  channel  which  might  appear  advantageous  to  the  Government  of 
the  United  States." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Eives,  Sept.  14,  1849.     MSS.  Inst.,  France. 

"  The  President  still  maintains  the  position  advanced  in  my  first  note 
to  Mr.  de  Tdcqueville,  that  this  Government  is  the  guardian  of  its  own 
honor,  and,  of  course,  the  sole  judge  of  what  is  due  to  it.  He  has  re- 
fused to  hold  further  correspondence  with  Mr.  Poussin,  and  he  will  re- 
fuse to  hold  it  with  any  other  minister  from  any  country  who  shall  use 
similar  language,  or  prove  himself  equally  disrespectful  to  this  Govern- 
ment. He  accords  to  all  other  Governments  the  same  rights,  in  this 
respect,  which  he  demands  for  his  own.  If  the  French  Government 
would  not  hold  such  language  disrespectful  when  applied  to  itself,  we 
shall  not  question  its  right  to  decide  as  it  shall  think  fit.  The  law  of 
710 


CHAP.   IV.]  OFFICIAL    INTKRCOUUSK  [§  107. 

iiiitioiis  has  wisely  given  (o  eacli  (lie  y\'^\\\  to  iii:iiut;iiii  its  own  liniKuiii 
siicli  eases,  by  placing-  liie  reiucdics  lor  insult  in  its  own  |tower.  One 
of  these  remedies  is  to  icfiise  to  concspond  any  loni;('r  wiih  (he  otlV-nder, 
and  the  right  cannot  be  denied  witliont  incurring  tin-  risk  of  involving 
the  world  in  wars  about  the  meaning  oC  words  and  tlic  forms  of  diplo- 
matic etiquette." 

Mr.  Clayton,  .See.  of  State,  lo  Mr.  Kivcs,  ,laii.  1.  Iri5(».     M.SS.  Inst.,  Kranco. 

The  Government  of  the  United  States  will  be  more  tolerant  of  expres- 
sions of  ])etulance  and  acts  of  annoyance  on  the  part  of  Governn)ent8 
of  South  American  states  threatened  with  i evolution  than  it  would  be 
of  similar  acts  or  expressions  by  stabh*  European  Governments. 
Mr.  Cass,  Sec.  of  State,  to  Mr.  Lamar,  .July  25,  l!-r)8.     MSS.  Inst.  Am.  St. 

"On  the  arrival  of  Mr.  Ward  at  Peking,  he  requested  an  audience  of 
the  Emperor  to  i)resent  his  letter  of  credence.  This  he  did  not  obtain, 
in  consequence  of  his  very  j)roi)er  refusal  to  subuiit  to  the  humiliating 
ceremonies  required  by  the  etiquette  of  this  strange  i)eople  in  a])i)roach- 
ing  their  sovereign.  Nevertheless,  the  interviews  on  this  (]uestion  were 
conducted  in  the  most  friendly  sjjirit,  and  with  all  due  regard  to  his 
])ersoual  feelings  and  the  honor  of  his  country.  When  a  i)resentation 
to  Uis  Majesty  was  found  to  be  impossible,  the  letter  of  credence  from 
the  President  was  received  with  peculiar  honors  by  Kwcilang,  'the 
Emperor's  prime  minister  and  the  second  man  in  the  Empire  to  the 
Emperor  himself.'  The  ratiticatious  of  the  treaty  were  afterward,  on  the 
IGth  of  August,  exchanged  in  ])ro])er  form  at  Peiisang.  As  the 
exchange  did  not  take  place  until  alter  the  day  i>rescribed  by  the 
treaty,  it  was  deemed  proper,  before  its  publication,  again  to  submit  it 
to  the  Senate.  It  is  but  simple  justice  to  the  Chinese  authorities  to 
observe  that  throughout  the  whole  transaction  they  appear  to  have 
acted  in  good  faith  and  in  a  friendly  spirit  towards  ihe  United  States. 
It  is  true  this  has  been  done  after  their  own  peculiar  fashion;  but  we 
ought  to  regard  with  a  lenient  eye  the  ancient  customs  of  an  Kmpire 
dating  back  for  thousands  of  years,  so  far  as  this  may  be  consistent 
with  our  national  honor.  The  conduct  of  our  minister  on  the  occasion 
has  received  my  entire  ajjprobatiou.'' 

President  Buchanan,  Third  Annual  Messaj^f,  IH.VJ. 

lu  regard  to  tho  ceremony  of  pre.sentation  to  the  Emiieror  of  China,  see  Mr. 

Webster,  Sec.  of  State,  to  JMr.  Cushing.  May  8,  H4:!.     ti  Weh.ster's  Works. 

470,471. 
As  to  presentation  of  American  citizens  at  the  court  of  France,  see  Senate  Ex. 

Doc.  No.  19,  :57th  Conjj.,  2d  sess. 

"I  very  freely  confess  to  the  opinions,  tirst,  that  an  audience  or  i>re- 
sentatiou  of  any  but  diplomatic  persons  at  court  is  to  be  regarded  not 
in  any  degree  as  a  right  of  the  person  received,  but  as  a  courte.sy 
extended  to  him.  Secondly,  that  the  imperial  court  is  entirely  at  liberty 
to  define  and  prescribe  the  qualifications,  conditions,  and  terras  on  which 

711 


^  107. J  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

straugers  .shall  be  admitted  into  its  society.  Thirdly,  if  American  citi- 
zens request  yon  to  present  their  wishes  for  admission  at  court,  you  can 
only  present  them  by  complying  with  the  terms  and  conditions  pre- 
scribed. Fourthly,  referrinj^  to  the  questions  which  have  actually  arisen, 
1  think  that  you  can  properly,  in  all  cases,  give  the  occupation  or  pro- 
fession of  any  person  whose  wishes  you  present.  You  cannot,  indeed, 
undertake  to  assign  the  social  position  of  each  person,  for  tliat  would  be 
to  discriminate,  or  to  seem  the  discriminate,  by  JEuropean  rules,  betw^een 
persons  who,  being  all  alike  citizens,  may  justly  claim  to  be  equals  in 
social  position  at  home,  and,  therefore,  equals  in  the  consideration  of 
this  Government  itself,  when  they  are  abroad.  It  seems  to  me,  however, 
that  in  many  cases,  there  are  circumstances  belonging  to  the  persons 
you  propose  to  present  which  may  be  properly  stated,  such  as  official 
positions  held  by  individuals  at  the  time,  or  even  at  some  previous  time. 
Distinctions  arising  from  personal  merit,  such  as  military,  scientific,  or 
literary,  or  of  a  jiolitical  character,  and  distinctions  as  founders  of  scien- 
tific, literary,  or  humane  institutions.  But,  even  when  these  sugges- 
tions are  made  in  compliance  with  the  rules  of  the  court,  it  is  not  to  be 
claimed  as  a  matter  of  right,  or  even  as  a  matter  of  national  comity, 
that  the  presentations  or  audiences  shall  therefore  be  granted. 

"  I  have  dwelt  on  the  subject  longer  than  was  due  to  any  importance 
that  it  can  claim.  It  is  peculiarly  uncomfortable  at  this  moment,  to  find 
American  citizens  leaving  their  country,  a  prey  to  faction  and  civil  war, 
disturbing  the  court  of  a  friendly  power,  and  embarrassing  our  repre- 
sentative there  with  questions  of  personal  interest  and  pretension.  Let 
the  Em])eror  aud  Empress  of  France  receive  whom  they  will,  and  as 
many  or  few  as  they  will,  aud  let  all  others,  as  well  as  those  who  are 
admitted,  turn  their  attention  to  the  question  how  they  can  serve  their 
country  abroad  ;  and  if  they  find  no  better  way  to  do  it  than  by  making 
their  attendance  in  the  saloons  of  the  Tuileries,  let  them  return  home 
to  a  country  that  now,  for  the  first  time,  needs  the  active  efforts  of  every 
one  of  its  loyal  children  to  save  itself  from  destruction. 

"Finally,  above  all  things,  have  no  question  with  the  Government  of 
France  on  this  subject.  Rather  introduce  nobody,  however  justly  dis- 
tinguished, than  let  a  question  of  fashion  or  ceremony  appear  in  the 
records  of  the  important  period  in  which  we  are  acting  for  the  highest 
interests  of  our  country  and  of  humanity." 

Mr.  Seward,  Sec.  of  State,  lo  Mr.   Dayton,  Feb.  o,  1862.     MSS.  lust.,  Frauce  ; 
Senate  Ex.  Doc.  No.  19,37th  Cong.,  2(1  sess. 

•'Presentations  to  members  of  reigning  families  cannot  be  made  by 
private  citizens  through  the  diplomatic  agency  of  the  Government. 
They  should  be  made  through  the  diplomatic  representative  of  the 
foreign  Government." 

Mr.  Fish,  See.  of  State,  to  Mr.  Montgoniory,  Dec.  5, 1871.    MSS.  Dom.  Let. 
712 


CHAP.  IV.]  OFFICIAL    INTERCOURSE.  [§  107. 

The  line  to  be  adopted  by  loici-n  inini.stfrs  as  toprcsnitatinii  of  Auieri- 
caiis  at  court  must  be  settled  by  siidi  ministeis,  iind  cainKtt  be  deter 
miued  by  tbe  Department  (jf  State. 

Mr.  Fish,  Sec.  of  Stale,  to  Jlr.  Jay,  Jan. '^'J,  l^T-J.     M.<S.  In-i..  ,\iiHiri:i. 

"  Eiit  it  would  eeilainly  be  ])ier('nibi»'  id  rcTn.-x-  lo  picsciil  anyone 
not  belonjiing-  to  the  lej^ation  than  lo  incur  the  risk  (»f  ollcntlin^' by 
introducing-  persons  of  questionable  character  and  antecedents,  or  to 
make  such  invidious  distinctions  as  would  be  unavoidable  by  extending 
the  list." 
I  hid. 

"Whether  all  audiences  (in  China)  should  be  delayed  until  the  Km 
peror  .shall  arrive  at  such  age  as  to  consider  and  direct  a  chan<;e  in  the 
forms,  or  until  the  increasing  intercourse  with  China  shall  prove  the 
wisdom  of  such  change,  may  be  somewhat  doubtful,  and  while  the  De- 
partment is  not  informed  as  to  the  ])articular  change  which,  in  Mr! 
Wade's  opinion,  it  may  be  advisable  to  adopt  in  the  ceremonial,  the 
President  is  clearly  of  the  opinion,  as  stated  in  the  circular  dispatch  of 
the  Department,  that  it  will  be  advisable  as  nearly  as  may  be  ])os.sible 
to  conforni  therein  to  western  usage." 

Mr.  Cadwalailer,  Acting  Sec.  of  State,  to  Mr.  Thoruton,  .Vug.  'JO,  iHT'i.     MSB. 

Notes,  Gr.  Brit. 
An  article  on  diplomatic  etiquette  is  given  in  Blackwood'.s  Mag.  for  Di-c,  1H73. 

vol.  114,  1).  mrff. 
As  to  etiquette  observed  on  the,  visit  of  the  Grand  Duke  Alexis,  of  Kussia,  to 

Washington,  in  1877,  .see  Mr.  Fish,  See.  of  State,  to  Mr.  Bok.-r,  Mar.  7,  1-77. 

MSS.Inst.,  Ku.ssia. 

"It  is  the  custom  of  diplomatic  intercourse  for  a  foieign  rciuesenta- 
tive  to  address  communications  in  his  own  tongue  to  the  Government 
to  which  he  is  accredited.  *  *  *  The  request,  however,  for  a  Frenc^h 
version  (in  Tripoli)  to  accompany  English  communications  is  regarde«l 
as  reasonable." 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.   Kolicson,   Fel..  v.'-^,  l--','.     MS.s.  lu.st.. 
Barb.  Powers. 

The  negotiations  in  1807-'(M)  with  the  British  legation  at  Washington 
are  strdiing  illustrations  of  the  importance  of  courtesy  and  ol  sinc«'rity 
in  diplomatic  a(;tion.     The  circumstances  of  the   attack  on  the  Clie>a 
jienke    by  the   Leo])ard,  in   ISOT,   are  elsewhere  narrated,  and  it  will 
be  remembi'red  that  President  .Jetlerson,  immediately  after  the  occur 
rence,  demanded  ie|);iration  and  apology  from  (Ireat  Britain,  and  sim- 
ultaneously interdicted   all    British   arme<l  vesstds   Irom    entciing   the 
territorialwaters  of  the  United  States,     (See  inf'rd,  §  M'>h.)     Tin-  Pox 
Grenville  ministry  was  then  in  power  in  l-higlaiid.  and  Mr.  David  Mon 
tague  Erskine,  son  of  Lord  Piskine,  then  ('iKinceilor,  and   a  gr;indson 
of  the  Earl  of  Buchan,  was  sent  as  minister  to  tlie  United  Siati-s  for 
the  purpose  of  settling  not  merely  the  comi)lications  e(Hinect»'d   with 
tlie  outrage  on   the   Chesapeake,  but  those  arising  Irom    the  order  of 
council  of  1807,  by  which  the   British    ministry  had    placed   the  whole 
northern  coast  of  Europe  under  a  pai)er  bio -kade,  and  had  prohibited 

713 


§  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

all  lUHiti  al  coasting  trade  aud  colonial  trade  between  belligerent  i)orts. 
(See  infra,  §  388.)     Mr.   Erskine's  selection  was  ])ecnliarly   fortnnate. 
(See  more  tally,  supra,  §  84.)     lie  bad  no  little  skill  as  a  diplomatist 
(see  Lord  Erskine's  pamphlet  in  liis  defense,  puldished   in  1807);  his 
wife  was  a   member  of  a  Philadelphia  family  of  high   social   position  ; 
he  iuheiited  his  father's  kindly  manners  and  sweet  temper  without  his 
father's  occasional  tendency  to  dissipation  ;  and  he  was  sincerely  desir- 
ous of  carrying  out  his  original  instructions  of  restoring  the  friendly 
relations  betw^een  the  two  countries.     It  is  true  that  on  the  fall  of  the 
Fox-Greuville  ministiy,  his  instructions  were  less  conciliatory  ;  but 
still,  taking  them  in  their  whole  scoi)e,  he  conceived  he  was  only  can  y- 
ing  out  their  spirit  when   on   April   18,  1809,  he  concluded  with   Mr. 
Madison's  administration,  which  had  just  come  into  power,  a  conven 
tion  providing  that  on  the  repeal  of  the  orders  of  council  of   1807 
and    rej)aration   for   the   aggression   on   the    Chesapeake,   the    Presi- 
dent's proclamation  excluding  British  men  of- war  from  American  waters 
should  be  recalled,  and  commercial  intercourse  with  Great  Britain  re- 
stored.    On  A])ril  10  Mr.  Smith,  Secretary  of  State,  recei\'ed  a  note 
'from  Mr.  Erskine  stating  that  the  orders  of  council  in  fpn  stion  were  to 
be  withdrawn  on  June  10.     On   the  same  day  the  President  issued   a 
proclamation  declaring  that  trade  with  Great  Britain  was  to  be  resumed 
on  June  10,  and  this  was  followed  not  merely   by  a  series  of  puldic 
meetings  expressing  joy  at  the  peace  thus  to  be  tirmly  established,  but 
by  the  introduction  in  the  House  (May  3, 1809),  by  Mr.  John  rvand()li)h, 
of  a  resolution  declaring  "that  the  promptitude  and  frankness  with 
which  the  President  has  met  the  overtures  of  the  Governnit^nt  of  Great 
Britain   towards  a  restoration  of  harmony  and  freer  commercial  inter- 
course between  the  two  nations  meet  the  approval  of  this  House."    But 
before  this  resolution  could  be  acted  on,  intimations  from  England  led 
to  a  doubt  whether  the  British  ministry  would  ratify  Mr.  Erskine's  con- 
vention; and  on  July  31  Mr.  Erskine  was  himself  coujjielled  to  announce 
to  the  Secretary  of  State  not  merely  his  own  recall,  bur  there])udiation 
of  the  convention  by  his  Government.     (See  tuipra,  §  84.)     This  recall 
and  disavowal  were  the  result,  as  we  now  know,  of  a  belief,  i)artly  that 
the  party  divisions  in  New  England  would  jtaralyze  the  Administra- 
tion, and  partly  that  the  tone  of  brutal   dictation  a  short  time  before 
assumed  toward  Denmark  might  with  a  like  success  be  assumed  towards 
the  United  States,  and  that  the  United  States  might,  by  such  dictation, 
be  forced  into  alliance  with  Great  Britain  and  war  with  France.     But 
whatever  might  be  the  cause,  the  result,  as  is  slated  by  Sir  A.  Alli- 
son,  in  his  review  of  this   period  of  British   history,  was  i)eculiarly 
unfortunate  for  Great  Britain,  as  it  prevented  a  settlement  by  which 
Great  Britain  would  have  been  saved  from  the  war  of  1812,  and,  as  a 
counterpoise,  led   to  closer  relations  between  the  United  States  and 
France.     {Supra,  §  84.) 

The  recollection  of  the  attack  on  Denmark,  to  which  reference  has 
just  been  made,  had,  no  doubt,  something  to  do  with  3Ir.  Canning's  se- 
lection, as  the  successor  of  Mr.  Erskine,  of  Mr.  Fran(;is  J.  Jackson,  who 
had  been  British  envoy  to  Denmark  at  the  time  of  the  i)rojected  attack 
on  Copenhagen,  and  who,  from  his  agency  in  that  outrage,  went  by  the 
name  of  "Copenhagen  Jackson."  In  a  remarkable  work,  i)ublished  in 
London  in  1872,*  by  a  member  of  ^Nlr.  F.  J.  Jackson's  family,  we  have  a 
series  of  letters  from  Mr.  F.  J.  Jackson,  narrating  the  temper  in  which  he 

*The  diaries  and  letters  of  Sir  G.  Jackson;  in  two  volumes,  Loudon,  187:.';  secoud 
series,  under  title  of  the  "  Bath  Archives,''  London,  1873. 

714 


CHAP.  IV.]  BRITISH    MINISTERS    BEFORE    1812,  [§  107. 

visited  Denmark,  and  in  wliicli  lie  altcrwaids  visited  the  United  Statea. 
In  a  letter  of  August  7,  1807,  \vb«n  lit-  was  on  tlic  liist  mission.  In-  thus 
speaks:  "I  had  an  interview  yesterday  with  tiie  Prince  Ke;,MMit,  to  whom 
I  stated  that  I  was  ordered  to  demand  the  .iun(;tion  of  tlie  Danish  tieet 
witli  tliat  of  Great  Britain,  and  that  in  (tase  of  refusal  it  was  the  de- 
termination of  His  AJajesty  to  enforce  it.  He  replied  that  'such  a  pro- 
posal \vas  utterly  opposed  to  every  prineij)!*'  of  honor,  and  that  the  men- 
ace by  which  it  was  accompanied  made  it  still  moic  otfeiisive.'"'  The 
"surrender"  beinj?  refused,  the  British  (leet,  cominj'-  down  siuldeidy 
in  over])Owerin<i-  strength,  made  the  attack.  The  Danes  resisted  t«t 
their  utmost.  "They  have  already,"  so  Mr.  Jackson  writes  on  St'iilein'oer 
1,  1807,-  "burnt  their  suburbs  and  destroyed  every  house  that  was 
likely  to  afford  shelter  to  our  peoi)le."  The  result  was,  to  follow  Mr. 
Jackson's  narrative  (Sept.  14,  1807),  be(;ause  Denmark  refused,  as  a 
neutral,  to  give  up  her  fleet  to  Great  Britain,  the  "burning  a  capital 
city,  the  residence  of  a  court,  and  <lestroying  a  great  commercial 
dei)Ot."  And  the  upshot  of  this  "negotiation  "  was  the  seizure  by  Great 
Britain,  without  declaration  of  war,  of  the  Danish  fleet,  Denuiark  being 
at  the  time  at  peace  with  Great  Britain,  and  utterly  unaware  that  such 
an  attack  was  e^  en  dreamed  of.  Mr.  F.  J.  Jackson  was  therefore  famil- 
iar with  the  tone  adopted  by  British  diplomatists  to  minor  Kuropean 
states.  Bis  subsequent  public  dispatches  to  his  Government,  during  his 
mission  to  the  United  States,  show  that  he  was  not  without  pride  in  hav- 
ing adopted  that  tone  with  Denmark.  Even  more  transjiarenlly  is  this 
temper  exhibited  in  the  series  of  letters  above  noticed,  in  which  his  pri- 
vate correspondence  with  his  family  at  the  time  is  given.  According 
to  the  appendix  to  volume  I  of  the  second  series  the  matter  ]»riiu-ii»ally 
before  the  new  envoy  was  the  arrangement  of  the  ditiiculties  caused  by 
the  attack  on  the  Chesapeake  and  "the  issuing,  by  President  Jefferson, 
of  a  proclamation,  dated  July  2,  1807,  interdicting  the  entry  of  all  the 
American  ports  to  the  whole  of  the  British  navy.  This  ]>roduced  fresh 
orders  in  council,  intended  to  support  British  maritime  rights  and  com- 
merce, and  to  counteract  Bonaparte's  continental  system.  America's 
wrathj"  so  the  editor  proceeds  to  say,  "was  kindled  against  England 
for  resorting  to  measures  of  self-defense,  and  in  the  month  of  Decem- 
ber, 1807,  Mr.  Jefferson  succeeded  in  carrying  a  resolution  in  Congress 
that  all  trade  and  intercourse  with  foreign  nations  shouUl  be  suspended. 
Bickerings  and  contentions  at  sea,  mutual  manifestoes,  embargoes,  sto|)- 
pages  to  trade,  and  much  angry  diplomacy  followed.  In  this  state  mat- 
ters remained  down  to  the  declaration  of  war  in  June,  ISlL',  when  ^Ir. 
Madison,  who  passionately  desired  that  his  term  of  ollice  should  be  dis 
tinguished  by  the  annexation  of  Canada  to  the  United  States,  was  I'res 

ident."  ,     ^ 

As  to  this  statement,  giving,  no  doubt,  Mr.  E.  J.  Jackson  s  after  views 
of  the  object  and  nature  of  his  mission,  the  following  observations  may 

be  made: 

First.  The  private  correspondence  of  the  parties  on  hie  in  the  Depart 
ment  of  State,  as  well  as  the  official  correspondence  of  the  Department, 
shows  that  neither  Mr.  Jefferson  nor  Mr.  Madison  desired  war  with 
Great  Britain,  and  that  if  they  erred,  it  was  in  their  extreme  solicitude 
lor  peace.  It  may  be  safely  averred  that  the  consideration  winch  drew 
them  finally  to  the  adoption  of  warlike  measures  was  the  fact  that  the 
grievances  wdiich  the  United  States  suffered  were  those  of  the  mariliine 
and  commercial  interests,  which  both  Mr.  Jefferson  and  Mr.  Madi.son 
felt,  from  their  own  personal  association  with  the  agricultural  classes, 

715 


§  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

and  from  tbeir  wish  to  subdue  sectional  and  class  rivalries,  a  peculiar 
desire  to  protect. 

Second.  Mr.  Madison,  as  liis  correspondence  shows,  had  not  only  no 
desire  for  the  "annexation  of  Canada,"  but  such  an  annexation,  coupled 
as  It  woukl  be  v/iih  a  protracted  and  deadly  war  with  Great  Britain, 
was  to  his  peaceful  and  unaggressive  temper  a  contingency  peculiarly 
dreaded. 

Third,  With  instructions  on  their  face  friendly  Mr.  F.  J.  Jackson,  as 
wo  now  learn  from  his  i)rivate  letters,  was  under  orders  to  grant  noth- 
ing, but  simply  to  "temporize"  and  to  "postpone"  actual  concession. 
But  while  thus  putting  oft'  the  granting  of  reparation  fo'.'  the  outrages 
to  which  the  United  States  had  been  subjected,  he  felt  that  he  was 
playing  the  part  to  which  he  was  assigned,  and  for  which  his  i)rior  dip- 
lomatic achievements  fitted  him,  when,  repudiating  Mr.  Erskiue's  course 
of  kindly  and  courteous  treatment  of  the  Government  at  Washington, 
he  began  by  exhibitiug  to  that  Government  an  attitude  of  arrogance. 

His  first  letter  in  the  American  series  is  dated  at  Washington  on 
October  7,  1809.  He  begins  with  a  slur  at  Mr.  Erskine,  whom  he 
describes  as  a  "Scotchman  witli  an  American  wife,  who  would  be  a 
fine  lady,  who  left  his  house  in  such  a  state  of  ruin  and  <lirt  that  it  will 
be  several  weeks  before  we  can  attempt  to  move  in  it."  He  is  ready  at 
the  outset  to  plunge  into  party  ])olitics.  "Many  of  the  Democrats  who 
were  his  (Erskiue's)  intimates  do  not  come  to  me,  and  I  am  well  pleased 
and  somewhat  flattered  by  the  distinction." 

Of  his  fii'st  interview  with  Mr.  Madison  he  thus  proceeds  to  speak  : 

"  ^Madison,  the  President,  is  a  plain  and  rather  mean  looking  little 
maii,  of  j; rear  simplicity  of  manners,  and  an  inveterate  enemy  to  form 
and  ceremony,  so  much  so  that  1  was  olficially  informed  that  my  iutro 
duction  to  him  was  to  be  considered  as  nothing  more  than  the  reception 
of  one  gentleman  by  another,  and  that  no  particular  dress  was  to  be 
worn  on  the  occasion,  all  of  which  I  was  very  willing  to  acquiesce  in. 
Accordingly,  1  went  in  an  afternoon  frock,  and  found  the  President  in 
similar  attire.  Smith,  the  Secretary  of  State,  who  had  walked  from  his 
office  to  Join  me,  had  on  a  pair  of  dusty  boots,  and  his  round  hat  in  his 
hand.'  When  he  had  introduced  us,  he  retired,  and  the  President  then 
asked  me  to  take  a  chair. 

"  While  we  were  talking  a  negro  servant  brought  in  some  glasses  of 
l)unch  and  a  seed  cake.  The  former,  as  1  had  been  in  conference  the 
whole  morning,  served  very  agreeably  to  wet,  or  whet,. my  whistle,  and 
stilUmore  strongly  to  contrast  this  audience  with  others  1  had  had  with 
most  of  the  sovereigns  of  Euroi)e." 

()f  Mrs.  Madison  he  declares  (having  Mrs.  Austen  in  mind)  that  she 
"is  tat  and  forty,  but  not  fair,"  and  he  i)roceeds  to  make  some  dis- 
l)araging  and  untrue  statements  as  to  her  early  training,  which  it  is 
not  worth  while  here  to  repeat,  but  which  he  qualities  by  intimating 
that  the  same  peculiarities  attached  to  Mrs.  Merr;\ ,  the  wife  of  one 
of  his  predecessors,  whose  social  iiretensions,  as  we  will  see,  caused  so 
much  difficulty  at  Washington,  On  October  20  he  writes  to  his 
brother  that  "  Erskine  is  really  a  greater  fool  than  I  could  have 
thought  it  possible  to  be,  and  it  is  charity  to  give  him  that  name. 
*  *  *  Kow  that  I  have  gone  through  all  his  correspondence,  more 
than  ever  am  1  at  a  loss  to  comprehend  how  he  could  have  been  allowed 
to  remain  here  for  the  last  two  years.  To  be  obliged  to  wade  through 
such  a  mass  of  folly  and  stupidity,  and  to  observe  how  our  country  has 
been  made,  through  Erskiue's  means,  the  instrument  of  these  people's 

716 


CHAP.  TV.]  BRITISH    MINISTERS    BKFORK    1812.  [v'v  107. 

cnniiiiig-.  is  not  llie  loust  i):iit  of  my  aimoyuncc  lietwiM-n  iIkmii  our 
cause  isvililied  iiidcod.  *  *  *  In  the  same  spirit  tln'y  lH*;,'aii  wit li 
me  by  sayinj>-  tliey  would  only  no^':otiate  upon  paper.  (See  as  to  tliis, 
.supra,  §  SO/;.)  But  tliey  iiave  .uained  notliin;^  l>ytliis  mode,  in  which  1 
was  oblified  to  acquiesce,  for  I  took  it  upjn  a  .st\le  tlmt  l>rou;,dit  them, 
in  some  de.i2:iee,  to  their  senses."  ''Madfson  is  now  as  obstinate  as  a 
mule.  *  *  *  if  after  tliis  we  «iive  tliem  any  .satisfaeiion  at  all  we 
bad  better  send  it  wrapped  up  in  a  Liriiisli  <'nsif,ni,  and  desire  tlit-m  to 
make  wdmt  use  of  it  they  please.  You  see  1  keep  ti)  Lord  Malmslmry's 
imwuu,  '  has  cu  haiit.''  *  *  *  A  bad  fttect  is  i)ro(hiced  by  the  min- 
ister ot  the  junta  remainin;;'  heie  even  till  he  can  receive  fresh  oiders. 
It  will  encouiajjje  these  peoi)le  in  tlieir  insoh'nce."  "At  bottom  they 
(Democrats  and  Federalists)  are  all  alike,  except  that  some  few  are  less 
knaves  than  others."  "I  came,"  he  writes  on  November  14,  18(>1>, 
after  he  found  his  tone  of  menace  and  of  insult,  as  adopte(l  by  hi(n 
in  his  correspondence,  had  failed,  "  i)rei)ared  to  treat  with  a  re^'ular 
Government,  and  have  had  to  do  with  a  mob  and  mob  leaders."  ''Do 
not  imajiine"  (he  bein<i'  by  this  time  iiittilied  that  his  recall  would 
be  asl.ed,  on  the  ground  that  it  would  be  imjtossible  to  corresjtond  with 
liim  after  he  had  charged  the  Secretary  with  duplicity  and  falsehood), 
"  that  this  is  a  personal  affair.  I  have  taken  higli  ground  for  my  «'oun- 
try,  and  it  was  highly  necessary.  *  *  ♦  i  have  luy  passports. 
*  *  *  My  objec't  was  to  secure  safety  and  inviolability  for  my  own 
jiersoii,  for  my  family,  and  the  other  ujembers  of  the  mission,  on  remov- 
ing from  Wasliington,  in  consecpience  of  the  outrageous  and  threaten- 
ing langaage  of  the  Dt  iiiocrats  and  the  i)apers  that  express  their  oi)in- 
ions  and  leelings."  On  Noveird^erl!!  Mrs.  Jackson  thus  states  her  hus- 
band's position,  he  having  retired  to  Baltimore,  out  of  the  reach  of  the 
'•threats":  '-We  i)assed  the  tirst  two  months  at  ^^'ashington,  the  seat 
of  Government,  but  Francis  being  accustomed  to  treat  witli  the  civili/ed 
courts  and  Governments  of  Earo))e,  and  not  with  savage  Democrats, 
half  of  them  sold  to  France,  has  not  succeeded  in  his  negotiation."' 
"It  would  be  an  absolute  disgrace  to  the  country,"  he  writes  on 
J\lay  1,  1810,  from  New  York,  which  was  his  next  retreat,  •  •  ♦ 
"if  another  minister  were  to  be  sent  here  without  some  sort  of  satis- 
faction being  taken  or  received  for  the  treatment  1  leceived."  "A 
more  despicable  set"  (the  Administration)  '•  1  never  met  with  be- 
fore, and  they  can  do  neither  England  nor  any  other  country  any 
barm.  They  are  as  deficient  in  talent  as  in  i)riuciple,"'  an<l  he  goes  on 
to  detail  "  a" disgraceful  outrage  that  took  ))lace  in  that  diity  ne^^t  of 
philosophy,  Philadelphia."  "  We  have  repeated  opi)ortuniti.-s"  (so  he 
writes  on  August  24,  1812,  three  years  after  his  return  to  England),  "of 
doing  what  is  right  to  the  Yankees,  but  still  hold  back.  1  do  hope  that 
before  this  business  (negotiation)  is  ended  we  may  fall  in  with  one  of 
their  frigates.  Sawvtr,  with  his  force,  ought  to  show  iheir  whole  navy 
across  the  Atlantic."  lUit  on  J)ecember  22,  1812,  after  the  war  had 
begun,  he  writes:  "As  to  the  coiuluct  of  the  naval  war  against  the 
Americans,  it  would  dis'grace  the  sixth  form  of  Eton  or  Westminster." 
This,  and  the  disasters  of  the  war,  with  the  scars  it  left  l)ehiiid,  might 
have  been  spared,  liad  Mr.  Erskiue's  course  been  sustained  by  the  Brit- 
ish ministry,or,  if  that  were  impracticable,  if  he  had  been  succeeded  by 
a  minister  with  w  horn  the  Government  of  the  Ignited  States  could  have 
negotiated  without  loss  of  self  respect.  There  was  no  course,  under  the 
circumstances,  but  to  request  Mr.  Jackson's  recall,  and  the  increase  of 
illieeling  between  the  Governments  which  this  request  caused,  couple<l 

717 


§  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

with  tlic  persistent  pressure  of  the  grievanoes  of  whicli  the  United  States 
coniphiined,  led,  after  the  intermediate  failure  of  Mr.  Foster's  mission, 
to  war. 

Sir  A.  Alison  thus  notices  Mr.  Jackson's  dismissal,  which  he  regards 
as  a  ))rovocation  to  war,  and  as  a  chief  incident  in  the  chain  of  events 
by  wiiich  the  war  of  1812  was  forced: 

"It  may  well  be  imagined  what  a  storm  of  indignation  was  raised  in 
the  United  States  when  the  intelligence  of  the  refusal  of  the  British 
(jovernment  to  ratify  Mr.  Erskine's  convention  was  received,  and  how 
l)ro<ligiousl,v  it  strengthened  the  hands  of  the  party  already  in  power 
and  supported  by  a  decided  majority  of  the  nation,  which  was  resolved 
at  all  hazards,  and  against  their  most  obvious  interests,  to  involve  the 
country  in  a  war  with  Great  Britain.  Mr.  Erskine,  as  a  matter  of  course, 
was  recalled,  and  Mr.  Jackson  succeeded  him  as  British  envoy  at  Wash- 
ington; but  his  reception  was  such,  from  the  very  outset,  as  left  little 
hope  of  an  amicable  termination  of  the  differences.  From  the  Fresi- 
tlent's  table,  where  the  English  minister  was  treated  with  marked  in- 
difference, if  not  studied  insult,  to  the  lowest  ale-house  in  the  United 
States,  there  was  nothing  but  one  storm  of  indignation  against  the 
monstrous  arrogance  of  the  British  maritime  pretensions  and  the  du- 
])licit.v  and  bad  faith  of  their  Government.  Unhappily  the  elections  for 
Congress  took  place  during  this  whirlwind  of  passion,  and  such  was  the 
ascendency  which  the  Democratic  party  acquired  in  the  legislature  from 
this  circumstance  that  it  was  plain  that  all  hopes  of  accommodation  were 
at  an  end.  Mr.  Jackson  continued,  however,  at  the  American  cai)ital, 
striving  to  allay  the  prevailing  indignation  and  renew  the  negotiation 
where  Mr.  Erskine  had  left  it  oft";  but  it  was  all  in  vain,  and,  after  a 
stormy  discussion  of  twenty-five  days  in  the  House  of  Representatives, 
it  was  determined,  by  a  great  majority,  to  break  off"  all  communication 
with  the  British  envoy  ;  and  Mr.  Pinkuey,  the  American  envoy  in  Lon- 
don, was  directed  to  request  the  recall  of  Mr.  Jackson,  whose  firmness 
tlie  American  Government  found  themselves  unable  to  overcome;  and 
this  was  at  once  acceded  to  by  the  British  administration." 

10  Alison's  History  of  Europe,  651  ff. 

As  to  this  statement  it  may  be  remarked  : 

(1)  Mr.  Jackson's  reception  was  one  of  peculiar  consideration.  Mr. 
Madison  was  then  at  Montpelier,  his  country  residence;  but  he  directed 
that  a  barge,  duly  manned,  should  be  sent  from  Washington  down  the 
Potomac  to  bring  Mr.  Jackson  to  the  city  more  expeditiously  than  could 
be  done  by  the  packet  by  which  he  was  to  have  come  up  from  ]S"orfolk. 
Mr.  Madison,  as  we  learn  from  the  private  correspondence  on  file  at 
llie  D(*|)artment  of  State,  transmitted,  through  Mr.  Smith,  Secretary 
of  State,  to  Mr.  Jackson,  cordial  expressions  of  regret  that  he  was 
Oi)lige<l  to  be  absent  from  Washington  at  the  time  of  Mr.  Jackson's 
arrival,  inviting,  in  terms  of  great  friendliness,  Mr.  Jackson  to  visit 
Montjx'lier.  Mr.  Jackson  acknowledges  this  in  one  of  those  singular 
letters  he  wrote  to  his  family  shortly  after  his  arrival — letters  of  vain- 
glorious satisfaction  at  the  attention  paid  him  and  of  condescending 
('ontenq)t  for  the  Government  by  whom  those  attentions  were  i)aid. 
It  was  not  unnatural  it  should  have  been  so.  The  desire  on  the  part  of 
Mr.  ^ladison,  always  placable  and  gentle,  to  avoid  a  rupture  with  Great 
Britain  was  then,  as  we  now  know,  very  strong.  Mr.  Smith,  Secretary 
of  State,  was,  as  connected  with  a  large  commercial  house,  enlisted  by 
interest  in  the  same  jiolicy ;  and  Mr.  Gallatin,  whose  influence  in  the 

718 


CHAP.  IV.]  BRITISH    MINISTERS    BEFORE    IKl'J.  [^  1 07. 

Cabinet  far  traiisct'iKlod  that  of  li is  associates,  was  (Icvoteil  to  tlie  riiaiii- 
ti'iiaiice  of  ])ea(;e,  wliicli  was  at  once  a  part  of  liis  political  piiilosopliy 
and  essential  to  his  tinancial  schenies,  l>ut  while  the  zeal  shown  to 
conciliate  Mr.  Jackson  was  not  unnatural,  it  is  not  snrpiisin;;  that  he 
should  have  detailed  to  his  family  the  exhibition  of  this  zeal  with  si-lf- 
complimentary  complacency.  Ministers  from  the  [Jnited  States  of  no 
little  eminence  ha(l  visited  London  ))rior  t(>  Mr.  .JacUson's  mission. 
IMr.  John  Adams,  at  the  time  the  leadinji'  statesman  of  his  country,  hail 
li'one  there  as  its  tirsr  envoy,  and  had  been  received  with  surly  nc;;- 
lect,  and  placed,  as  he  tells  us,  in  social  ostracism.  Mr.  .lay,  .Mr.  T. 
Pinckney,  Mr.  Monroe,  and  Mr.  William  I'inkiu'y,  mt'ii  of  sin^iular 
courtesy,  cultivation,  and  dignity,  were  certainly  not  met  in  advance 
with  barges  on  the  Thames  to  make  nu)re  comfortable  their  pa>s- 
age  over  that  river,  nor  do  their  letters  tell  us  of  any  maiUed  social 
courtesies  bestowed  on  them  by  members  of  the  Government,  Pait  <»f 
the  remembrance  of  this  may  have  led  Mr.  .Tackson,  famdiar  as  he  was 
with  the  aniuils  of  British  diplonuicy,  to  narrate  to  his  family  with  pe- 
culiar zest  the  honors,  almost  obsequious  as  he  describes  them,  widch 
were  showered  on  him  when  he  reached  Washington.  While  this,  how- 
ever, need  not  sur])ris(^  us,  we  would  be  entitled,  from  what  we  now 
know  of  the  facts,  to  be  surprised  that,  alter  his  '•Copenhagen  ''  men- 
aces had  provoked  the  rebuff  due  them,  and  after  the  charge,  made  by 
him  against  the  Administration,  of  falsehood  and  duplicity,  had  i)ecn 
met  by  a  refusal  to  hold  further  intercourse  with  him,  even  he  should 
have  ii ad  the  audacity  to  tell  hisGoverniiuMit  that  he  had  been  ivceived 
at  Washington  with  rudeness  and  insult ;  that  he  was  in  danger  from 
the  Washington  "mob,"  and  that  the  tone  of  society  there  was  >o  low 
that  he  and  his  wife  could  no  longer  abide  it,  but  must  move  the  lega- 
tion to  New  York. 

(2)  The  "President's  table"  is  referred  toby  Sir  A.  Alison  as  the 
scene  "of  marked  indifterence,  if  not  of  studied  insult,"  to  Mr.  Jackson, 
and  from  this  table  "to  the  lowest  ale  house  in  the  United  States,"  we 
are  told,  "  there  was  nothing  but  one  storm  of  imlignation,"  »S:c.  No 
doubt  thiv-  is  what  Mr.  Jackson  told  his  Government  after  his  dismissal; 
but  his  letters,  written  to  his  family  at  the  time  of  his  reception.  an«l 
before  his  misconduct  led  to  his  dismissal,  show  that  this  statenu-nt 
was  untrue.  In  the  next  section  will  be  given  Mr.  Jackson's  contem- 
poraneous account  of  his  reception  at  the  "  President's  tabh'.*'  ami  of 
the  coutemi)tuous  conceit  with  which  he  leceived  on  his  tirst  visit  to 
Mr.  .Madison  thesimi)le  hospitalities  whi<-h  it  was  natural  for  Mr.  .Madi- 
son, as  a  quiet,  unostentatious,  and  unaltected  Virginia  gentleman,  to 
pay.  Mrs.  Madison's  singular  grace  and  dignity,  of  which  few  observers 
but  Mr.  Jackson  were  unconscious,  he  indeed  does  not  notice  in  the 
letter  written  by  him  immediately  on  his  lirst  visit  ;  but  he  regales  his 
family  with  a  st\itement  about  her  early  life,  which,  false  as  it  is,  is  t(»o 
base  to  be  here  repeate<l.  He  goes  w  ith  his  wife,  however,  to  dine  with 
Mr.  and  Mrs.  Madison,  and  the  hom)rs  there  i)aid  him  he  dilates  on 
(?>///•«,  §  107a)  in  a  detail  which  shows  how  without  foiimlation  are  his 
subsequent  fabrications  about  insults  at  the  "  Presiih'iit's  tabh-."' 
When  the  equally  famous  dinner  invitation  was  temlered  Mr:  .Meiry, 
Mr.  Jefferson's  daughters  were  absent,  and  Mr.  Jetferson  gave  only  in- 
formal dinners,  following  the  French  usage  under  such  circumstances 
which  prevailed  when  he  was  at  Paris.  There  was  no  -lady,"  there- 
foie,  "at  the  table"  for  Mr.  Meiry  to  "take  in."  When  .Mr.  Merry 
demanded    that  the  attention  of  precedence  should  be  paid  him  it 

719 


^^  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

was  impossible  to  accede  to  his  demand,  as  orlierwise  be  would 
liave  bad  to  walk  iu  advance  with  Mr.  Jefferson,  leavin*;-  liis  own  wife 
bebind.  A'^ide  from  this,  it  was  impossible  for  Mr,  Jefferson,  either 
as  President  or  as  a  gentleman  in  his  own  bouse,  giving  an  informal 
entertainment,  to  admit  a  claim  to  arrange  the  order  of  bis  tattle, 
made  by  the  British  n)inister  as  a  matter  of  right.  So  it  was  that  the 
request  to  give  Mr.  and  Mrs.  INIerry  precedence  at  Mr.  Jefferson's  table 
was  declined,  as  will  be  presently  noticed  aiore  fully,  and  this  was  re- 
ported to  the  British  Goveinment,  and  dwelt  upon  by  English  writers, 
as  a  mark  of  disrespect  and  a  cause  of  grievance.  Mr.  Madison  recol- 
lected this  well,  and,  Mrs.  Madison  being  at  his  side  to  help  him,  he  took 
])ains,  in  his  own  simple  and  kindly  way,  to  arrange  matters  so  as  to 
avoid  the  i)ri()r  difficulties.  The  second  "dinner  arrangement,"  which 
was  to  take  so  conspicuous  a  ])art  in  our  diplomatic  relations  with  Great 
Britain,  was  then  made  in  such  a  way  as  to  give  Mr.  and  Mrs.  Jackson 
the  jiositiou  they  claimed — Mrs.  Madison  leading  Mr.  Jackson,  Mr. 
Madison  Mrs.  Jackson;  which  distinction  Mr.  Jackson,  as  we  will  pres- 
ently see  (infra.,  §  107a),  dwells  on  with  satisfaction  in  a  letter  written 
to  his  family  immediately  after  the  event,  not  refraining  from  mention- 
ing how  much  more  successful  his  "diplomacy"  had  been  in  this  respect 
than  that  of  Mr.  Merry,  nor  from  intimating  that  Mrs.  Merry's  origin 
was  sucli  as  to  place  her  under  some  sort  of  stigma,  which  may  have 
been  the  cause,  he  may  have  desired  to  suggest,  why,  even  at  Washing 
ton.  })recedence  was  not  allowed  to  her.  But  however  this  may  be, 
Mr.  Jackson's  subsequent  statements  of  '-insults  at  the  President's 
table,"  sent  by  him  to  the  British  Government  and  adoi)ted  by  British 
historians,  are  showji  to  be  untrue  by  his  own  family  letters  contem- 
poraneous with  the  event.  That  they  were  from  the  nature  of  things 
untrue,  no  one  ever  has  doubted  who  is  familiar  with  the  simple  but 
gracious  and  nniformly  considerate  manners  of  Mr.  and  Mrs,  Madison 
and  the  relined  and  studied  courtesy  of  Mr,  Gallatin,  who  was  Mr. 
Madison's  chief  friend  and  adviser,  and  who  from  his  gentle  birth  and' 
training  at  Geneva  was  at  least  as  competent  as  Mr.  Jackson  to  decide 
questions  of  social  bearing. 

(3)  The  personal  indignities  at  Washington  claimed  by  Mr.  Jackson 
to  have  been  received  by  him,  have  been  already  noticed  {fiujira,  §94). 
The  ui)shor  of  these  was  that  Mr.  Jackson  attempted  to  bully  and  brow- 
beat the  Government,  that  he  was  told  that  after  such  an  insult  no 
iurther  intercourse  could  be  held  with  hini,  and  that  he  at  once  an- 
nounced that  be  would  move  the  legation  to  IS^ew  York.  It  is  not  true 
that  be  met  with  any  indignities  at  Washington  beyond  this  merited  re- 
fusal by  the  members  of  the  Administration,  and  of  its  leading  snjjport- 
ers,  to  associate  with  him  personally,  or  to  receive  any  further  com- 
munications from  him.  There  was  no  complaint  whatever  made  by  him 
of  such  indignities  until  after  this  rei)ulse.  There  is  no  country  in  which 
diplomatic  immunities  are  so  highly  regarded  as  in  the  United  States. 
There  are  no  courts  which,  as  we  have  seen  (sKpra.,  §  9l*),  place  so  strong 
a  guard  on  these  immunities  as  the  courts  of  tlie  United  States,  Federal 
and  State.  Xo  rulers  have  ever  lent  a  more  attentive  ear  and  extended 
a  i)rompter  arm  to  bring  offenders  in  such  cases  before  the  courts  than 
the  successive  Presidents  of  the  United  States.  Mr.  Jackson,  as  an  ex- 
perienced dii)lomatist,  must  have  been  aware  how  often  foreign  minis- 
ters in  London  had  appealed,  sometimes  ineffectively,  for  the  ])rotec- 
tion  of  the  British  authorities.  He  could  not,  also,  have  been  uncon- 
scious of  the  masterly  skill  as  well  as  quiet  courage  with  which,  as  the 

720 


CHAP.  IV.]  BRITISH    MINISTERS    BEFORE    1812.  [§  107. 

highest  English  authorities  ou  international  law  now  concede,  liad  been 
discharged  the  international  duties  of  the  successive  A«lmiiiist rations 
of  the  United  States  down  to  the  period  of  his  arrival.  lie  must  liave 
known  that  if  any  indignities  had  been  ollered  to  hiui  or  his  h-gation 
it  was  only  necessary  for  him  to  sta.'e  the  fact  to  the  Secretary  of  State 
in  order  to  obtain  redress.  He  made  no  such  statement,  brcausr  there 
■was  no  such  indignity  offered  to  him.  He  withdrew  iVom  ^^  asliington 
when  his  intolerable  insolence  made  it  imi)ossible  for  the  (lovcrnuuMit 
to  deal  officially  with  him,  and  when,  incensed  as  were  the  publicists 
and  statesmen  of  the  continent  of  Europe  at  his  overbearing  conduct 
at  Copenhagen,  as  vs^ell  as  at  the  arbitrary  and  arrogant  tone  assumed 
by  his  Government  even  to  those  European  i)owers  with  whi(;h  it  was  at 
peace,  he  found  at  Washington  nodefenders  among  the  diplomatic  corjts. 
He  left  his  post  partly  because  in  a  place  consisting  ahn<»st  entirely 
of  official  society  he  thus  isolated  himself  and  termin.ited  his  relations 
with  the  Government,  and  partly  because,  to  his  peculiarcomprclicnsion, 
such  a  departure  was  to  be  regarded,  as  his  dei)arture  under  similar  cir- 
cumstances from  Coi)euhageu  had  been,  as  a  tinal  threat  of  the  swift  pun- 
ishment he  expected  his  Government  to  inflict.  But  the  falsity  of  the 
pretext  he  afterwards  set  up  of  indignities  oflered  to  him  by  Washington 
"  mobs  "  is  shown,  not  merely  by  the  circumstances  of  the  case  which 
made,  as  we  will  presently  see,  such  "mobs'"  impossible,  but  by  the  fact 
that  at  the  time  he  neither  mentioned  them  to  his  family,  in  the  (•oi)ioua 
correspondence  he  maintained  with  them,  nor  asked  of  this  Government 
protection  from  them.  The  only  complaint  bearing  on  the  subject  that 
is  discoverable  is  the  following: 

"As  Mr.  Jackson  has  been  already  once  most  grossly  insulted  by  the 
Inhabitants  of  the  town  of  Hampton,  in  the  unprovoked  language  of 
abuse  held  by  them  to  several  officers  bearing  the  King's  uniform,  when 
those  officers  were  themselves  violently  assaulted  and  put  in  imminent 
danger,"  he  requests  a  passport  tbr  himself  and  family. 

Mr.  Oakley,  British  Sec.  of  Legation,  to  Mr.  Smith,  Sec.  of  State,  undated  (re- 
ceived Nov.  11,  1809).    3  Am.  St.  Pap.  (For.  Rel.),  :U9. 

Tf  the  anecdotes  told  in  Mr.  Jackson's  family  letters  of  Mr.  Oakley's 
inefficiency  and  absurdity  are  to  be  relied  on,  Mr.  Oakley's  state- 
ments are  not  to  be  regarded  as  high  authority.  But  giving  this  sol- 
itary complaint  which  was  made  by  the  British  legation  ot  insults  to 
Mr.  Jackson  (sent,  also,  after  Mr.  Jackson's  dismissal),  its  utmost  sig- 
nification, it  reduces  the  insults  to  "  unprovoked  language  ot  abuse 
held  by  "several"  "of  the  inhabitants  of  the  town  ot  Haiiipton  (a 
little  fishing  village  im  Virginia  near  the  mouth  of  the  James  Kiver)  "to 
several  officers  bearing  the  King's  uniform,"  abuse  of  these  oQicers 
being  by  construction  abuse  of  Mr.  Jackson,  who  was  m.t  within  an 
hundred  miles  of  the  place.  Mr.  Jackson,  having  previously  been 
dismissed  from  Washington,  asked,  ui>on  this  -  insult,  '|  liis  pas*^- 
port."  But  what  for?  To  leave  the  country  ?  To  do  tins  he  had  no 
intention.  His  "passport"  was  to  take  him  to  Philadelphia  or  New 
York,  there  to  set  up  his  legation  as  a  center  of  hostile  operations  by 
acting  on  parties  whom  he  supposed  disaftected  to  the  Government. 

So  far  as  Washington  is  concerned,  the  pretense  set  up  atterwards 
by  Mr.  Jackson  to  cover  his  retreat,  that  it  was  governed  by  a  "  '""^ 
who  threatened  hun  with  personal  violence, la  absurdly  untrue.     W  asU- 
ington  was  at  the  time,  as  he  himself  in  his  taiuily  letters  declares,  a 
mere  hamlet,  and  in  such  a  hamlet,  a  day's  long  Journey  even  Irom 

S.  Mis.  162— VOL.  I 46  ''^^ 


§  107. J  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Baltimore,  no  mob  could  be  collected  for  any  purpose  whatsoever.  !Nor,, 
if  "mobbiug"  was  to  be  done,  would  anything  be  more  unlikely  than 
that  the  British  minister  should  have  been  selected  as  its  victim.  The 
Federalists  in  Congress,  though  not  numerous  in  those  days,  attacked 
the  Administration  with  a  virulence  almost  without  parallel  in  our 
history ;  and  it  is  sufficient  to  read  Mr.  Quincy's  speech  on  Mr.  Jack- 
son's mission  to  see  that  if  there  had  been  any  danger  of  insult  to  be 
feared,  that  danger  was  to  have  been  feared  by  Mr.  Quincy  and  those  who 
sustained  him  in  his  vehement  assaults  on  the  Administration,  and  not 
by  Mr.  Jackson,  whose  misdeeds  were  covered  by  the  veil  of  diplomatic 
confidence.  But  there  was  no  danger  of  personal  insult  to  any  one.  The 
fault  of  the  Administration  was  not  undue  belligerent  animosity,  but 
imdue  pacific  tendencies  toward  Great  Britain,  and  so  Mr.  Quincy  ad- 
mitted, when  he  declared  in  Congress,  in  words  which  show  how  tolerant 
was  public  sentiment,  that  the  submissiveness  of  the  Administration  to 
Great  Britain  was  such  that  it  could  not  "  even  be  kicked  into  a  war."  It 
is  not  necessary  to  ascribe  Mr.  Jackson's  flight  from  Washington  to  fear. 
It  was  probacy  partly  in  anger,  partly  in  conformity  with  the  "Copen- 
hagen" precedent,  as  above  noticed.  But  a  hasty  and  angry  departure 
there  was,  and  a  removal  "  of  t-he  legation  to  New  York,"  preceded  by  a 
sort  of  political  progress  through  Baltimore  and  Philadelphia,  where, 
according  to  his  own  account  and  that  of  his  wife,  so  far  from  being  met 
with  insults  (though  there  at  least  he  was  in  cities  where  mobs  were  possi- 
ble), he  and  his  family  were  overwhelmed  with  even  oppressive  hospi- 
talities. After  these  alleged  ovations  he  moved  to  New  York  and  Bos- 
ton, where  similar  receptions  he  declared  awaited  him.  When  he 
arrived  at  Boston  he  was  entertained  by  the  extreme  Federalists,  then, 
according  to  Mr.  J.  Q.  Adams,  brooding  over  schemes  of  disunion,  at  a 
dinner  in  which  he  gave  a  toast  so  flagitiously  insolent  to  the  Govern- 
ment that  Mr.  Madison  was  compelled  to  direct  that  his  recall  should 
be  immediately  demanded.  Sir  A.  Alison  thinks  that  this  was  one  ot 
the  causes  of  the  war  of  1812.  The  dismissal  by  itself  was  not  such  a 
cause,  for  it  was  justly  merited.  But  the  announcement  of  the  British 
Government  that  it  saw  no  reason  to  be  displeased  with  Mr.  Jackson's 
conduct  should  have  been  met  by  the  Government  of  the  United  States 
with  a  demand  for  a  retraction,  the  refusal  of  which  to  have  been  fol- 
lowed by  a  declaration  of  war,  anticipating  by  three  years  that  of  1812. 
Had  a  minister,  accredited  by  the  United  States  to  the  British  Gov- 
ernment, begun  his  work  by  dictating  to  the  head  of  that  Government 
in  what  way  he  was  to  be  socially  entertained ;  had  he  started  off  on 
his  diplomatic  career  by  charging  that  Government  with  falsehood  and 
duplicity  in  its  prior  negotiations;  had  he  admitted,  when  this  was 
gravely  pointed  out  to  him,  that  such  was  his  intention,  and  repeated 
the  offense ;  had  he  declared,  when  further  intercourse  with  him  was 
refused,  that  he  would  no  longer  remain  at  the  seat  of  Government,  and, 
supjjosing  the  seat  of  Government  was  then  at  some  secluded  village, 
announced  that  he  left  from  fear  of  "the  mob ;"  if,  after  such  a  depart- 
ure, and  after  being  requested  to  leave  the  country,  instead  of  doing  so 
he  had  gone  on  a  progress  through  a  series  of  cities,  in  which  alone 
"  mobs"  could  have  been  collected,  exciting  opposition  to  the  Adminis- 
tration and  giving  "toasts"  insulting  it;  if,  after  the  Government  of 
the  United  States  had  been  informed  of  this  conduct,  it  had  indeed  re- 
called the  minister,  but  announced  that  it  saw  nothing  in  his  proceed- 
ings to  disapprove  of;  if  such  should  have  been  the  course  taken  by  the 
United  States  to  Great  Britain,  the  reply  would  have  been  "  you  must 

722 


CHAP.  IV.]  BEITISH   MINISTEKS    BEFORE    1812.  [§  107. 

ai)ologize  for  insults  so  flagrant  and  for  actions  so  derogatory  to  our 
])o:!;ition  as  a  great  power,  claiming  at  least  equality  with  any  power  on 
the  globe.  You  must  not  only  recall  your  minister  but  you  must  dis- 
avow his  proceedings." 

That  this  course  was  not  taken  by  Mr.  Madison  is  to  be  explained  by 
his  constitutional  aversion  to  war,  strengthened  by  the  conviction  which 
he  had  inherited  from  Mr.  Jefl^erson,  and  which  was  shared  by  Mr. 
Gallatin,  his  chief  adviser,  that  war,  in  itself,  a  great  evil,  would  be 
peculiarly  so  when  waged  by  the  United  States,  with  resources  as  yet 
imi)erfectly  developed,  with  a  coast  as  yet  unfortilied,  with  a  uavy  as 
yet  in  embryo,  against  Great  Britain,  then  unchallenged  sovereign  of  the 
seas,  to  whom,  in  spite  of  the  hardness  and  arrogance  of  her  treatment 
of  her  colonies,  which  Burke  had  so  vividly  described,  and  which  con- 
tinued to  mark  her  demeanor  to  the  United  States,  a  large  portion  of 
the  country  still  looked  with  an  aflection  which  even  two  wars  have  not 
been  able  yet  to  extinguish.  But  more  than  any  purely  personal  afl'air 
since  the  Revolution  did  Mr.  Jackson's  conduct  in  his  mission  and  its 
approval  by  the  British  Government  tend  to  render  the  preservation 
of  peace  difficult,  and  this  detailed  notice  of  his  mission  may  be  of 
service  in  this  place  for  the  purpose  of  illustrating  the  importance 
in  diplomatic  intercourse  of  courtesy,  of  candor,  of  truthfulness,  of 
manly  courage  and  dignity,  and  of  scrupulous  avoidance  of  interfer- 
ence in  the  domestic  politics  of  the  country  of  residence.  It  is  for- 
tunate that  the  recent  ingenuous  publication  of  Mr.  Jackson's  family 
correspondence,  and  the  possession  by  the  Department  of  State  of  the 
private  papers  of  Mr.  Jefferson,  Mr.  Madison,  and  Mr.  Monroe  have 
brought  to  light  the  true  circumstances  of  Mr.  Jackson's  dismissal — a 
dismissal  which  was  made  by  the  British  administration  at  the  time,  as 
well  as  by  British  historians  subsequently,  a  ground  for  grave  com- 
plaint against  the  United  States.  The  dismissal  was  a  necessity  ;  the 
approval  of  his  conduct  by  Great  Britain  was  an  insult  which  no  high- 
spirited  nation  should  have  tamely  borne. 

The  change  produced  by  the  war  of  1812  in  the  tone  of  the  British 
ministers  at  Washington  is  very  marked.  "Their  first  war  with  Eng- 
land," said  the  London  Times  in  April,  1817,  speaking  of  the  United 
States,  "  made  them  independent;  their  second  made  them  formidable." 
(3  Schouler,  U.  S.,  22.)  With  this  consciousness  on  the  part  of  England, 
the  English  attitude  to  the  United  States  underwent  a  change.  Bagot, 
who  was  the  first  permanent  minister  after  the  war,  was  not  merely  an 
experienced  practical  diplou-vatist,  but  a  man  of  kindly  temper,  of  con- 
siderate manners,  and  of  a  social  position  at  home  so  high  as  not  to 
make  him  think  it  necessary  to  set  up  pretensions  to  superiority  whet) 
abroad.  He  was  assisted  also  by  a  wife  whose  attractiveness  and  good 
sense  added  greatly  to  liis  popularity'  in  all  quarters.  Under  the  era  of 
ministers  which  thus  began  the  diplomatic  relations  between  the  coun- 
tries were  freed  from  those  irritating  elements  by  which  they  had  been 
disturbed  prior  to  the  war. 

Of  the  ministers  who  served  the  United  States  in  London  in  those 
troubled  days  it  may  at  least  be  said  that  they  were  not  only  well  versed 
in  that  system  of  international  law  in  relation  to  neutral  rights,  in  form- 
ulating which  the  United  States  is  now  universally  acknowledged  to 
have  taken  the  lead,  but  that  they  were  men  of  marked  dignity  and 
courtesy,  on  whom  even  the"  most  supercilious  critic  could  make  no  per- 
sonal criticism  and  to  whom  no  one  of  the  British  secretaries  with  whom 
they  did  business  imputed  any  personal  fault.     Of  Mr.  Jay  and  of  Mr. 

723 


§  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Thomas  Piiickney  it  is  scarcely  necessary  to  say  that  men  of  liigher 
tone,  of  more  simple  truthfulness,  of  more  delicate  sense  of  honor,  could 
not  be  found.  Of  Mr.  Monroe  and  Mr.  William  Pinkney,  whose  mis- 
fortune it  was  to  negotiate  a  treaty  with  Great  Britain  which  Mr.  Jeff- 
erson when  President  declined  to  accept,  on  the  ground  that  it  left  the 
chief  causes  of  difference  still  open  (see  infni,  §  1.506),  a  few  words  may  be 
here  hazarded.  Mr.  Monroe  has  had  a  singular  place  in  the  opinion  of  his 
countrymen.  He  has  always  been  regarded  as  a  man  of  marked  simplic- 
ity, exact  truthfulness,  great  generosity,  and  a  high  sense  of  honor. 
He  was  the  last  officer  of  the  Revolutionary  war  to  fill  a  high  civil  sta- 
tion ;  he  was  the  last  of  the  illustrious  line  of  the  Virginia  Presidents ; 
he  closed  this  lineage  by  a  career  distinguished,  like  that  of  his  prede- 
cessors, by  dignity,  by  official  purity,  by  unsectioual  patriotism,  and 
by  unflinching  fidelity  to  duty.  He  had  not,  like  Washington,  the 
opportunity  to  exhibit  that  majestic  forritude  and  wise  leadership 
which  enabled  Washington  to  overthrow  an  old  government  by  which 
order  and  liberty  were  imperiled,  and  to  establish  a  new  government  in 
which  order  and  liberty  were  to  be  established.  He  had  not  that  political 
genius  which  enabled  Jefferson  to  forestall  the  future,  nor,  while  accept- 
ing Jefferson's  principles,  could  he  present  them  with  Jefferson's  buoy- 
ant and  fascinating  enthusiasm ;  he  had  not  Madison's  power  of  calm 
judicial  statement;  but  he  combined,  as  became  the  last  of  that  re- 
markable series  of  statesmen,  some  of  the  best  qualities  of  each.  It  is 
true  that  when  in  the  Senate  during  Washington's  administration  he 
opposed  that  administration  in  its  foreign  policy,  and  incurred  Wash- 
ington's displeasure.  But  in  his  old  age  his  earlier  affection  towards 
his  former  chief  revived.  With  Washington,  in  fact,  he  had  much  in  com- 
mon. Like  Washington,  and  unlike  Jefferson,  he  did  not,  by  his  per- 
sonal genius,  impress  his  views  on  his  Cabinet,  but,  collecting  statesmen 
of  ability  of  different  schools,  he  sought  not  merely  to  harmonize  their 
counsels,  but  by  patiently  weighing  these  counsels  when  conflicting  to 
arrive  at  a  just  and  wise  conclusion  of  his  own.  To  Jefferson's  distinct- 
ive principles  of  liberalism  he  always  remained  faithful  as  a  disciple, 
though  it  would  not  have  been  his  nature  to  have  originated  them  as  a 
chief.  His  style  in  his  political  papers  was  unassuming  and  plain,  and 
sometimes,  like  that  of  Washington,  inelegant  and  labored,  wanting 
Jefferson's  felicity  and  Madison's  exact  lucidity.  In  his  bearing  and 
social  usages  as  President  he  followed  Washington  much  more  closely 
than  he  followed  Jefferson  or  Madison;  his  manner  became,  as  he  grew 
older,  more  formal  and  reserved ;  his  diplomatic  experience,  in  particular, 
as  well  as  the  difficulties  of  his  immediate  predecessors,  taught  him  how 
great  were  the  embarrassments  arising  from  familiar  conversation  be- 
tween the  Chief  Executive  and  foreign  ministers.  This  dignified  reti- 
cence he  gradually  applied  to  his  intercourse  with  all  public  men,  out- 
side of  bis  Cabinet.  Not  a  cloud  ever  fell  on  his  fair  fame.  Of  him,  as 
well  as  of  his  predecessors  in  that  illustrious  succession,  it  could  be  said 
that  with  the  opportunities  of  wealth  showered  on  them,  public  life  was 
to  them  the  cause  of  i)ecuniary  loss,  not  of  gain  ;  and  in  his  owu  partic- 
ular case  it  is  well  known  that  his  hospitality  when  minister  abroad, 
and  afterwards  at  Washington,  involved  him  in  expenses  so  much  in 
excess  of  his  salary  as  to  absorb  his  modest  patrimon.y.  (See  infra, 
§  107c.)  Of  neither  him  or  them,  also,  could  it  be  said  that  political 
patronage  was  used  to  favor  relatives  or  to  pay  personal  services. 
During  Washington's  administration  Monroe's  affections  were  known 

724 


CHAP.  IV.]  MONROE    AS    A    NEGOTIATOR.  [§  107. 

to  turu  strougiy  toward  France,  whicli  bis  cojiduct  toward  that  Goverii- 
lueut  when  minister  at  Paris  was  sui)posed  to  Lave  unduly  disjilayedj 
nejjotiatious  into  whicli  he  had  entered  with  France  were  disavowed, 
and  he  was  recalled  in  a  manner  marking  strong  disapprobation.  That 
this  was  in  a  large  measure  undeserved  subsequent  tlevelopments 
have  shown ;  but  be  this  as  it  may,  his  next  appearance  in  the  dij)- 
lomatic  field  was  marked  by  a  singular  triumph.  Upon  the  question 
of  the  comparative  efficiency  of  Mr.  Monroe  and  of  Mr.  K.  Livingston 
in  the  Louisiana  negotiation — a  question  afterwards  so  much  debated — 
it  is  not  necessary  now  to  enter;  it  is  enough  to  say  that  the  negotia- 
tion faltered  until  Monroe's  arrival  at  Paris,  and  that  it  was  under  the 
finishing  touch  given  by  him,  at  a  period  when  ^Napoleon  was  forced  to 
cede  Louisiana  or  to  run  the  risk  of  losing  it  altogether  in  the  war 
about  to  reopen,  that  thepurchaseof  that  splendid  province  was  efiected. 
Before  this  Mr.  Monroe  had  been  looked  upon  as  a  destructive,  and  on 
him  the  peculiar  enmity  of  the  opposition  had  been  poured.  The  Lou- 
isiana treaty  showed  in  him  great  constructive  powers ;  in  his  negotia- 
tions with  Great  Britain,  so  far  from  indicating  undue  prejudice  against 
that  haughty  power,  his  course  was  marked  not  only  by  the  courtesy  and 
simplicity  which  under  no  circumstances  did  he  lose,  but  by  concessions 
to  Great  Britain  which,  as  has  been  said,  wise  as  they  may  have  been, 
went  as  far  in  some  respects  as  did  Mr.  Jay's  treaty,  and  went  too  far  to 
be  accepted  by  Mr.  Jefferson.  During  the  greater  part  of  Mr.  Madison's 
administration  he  was  Secretary  of  JState;  during  the  whole  of  his  own 
administration  he  revised  every  important  dispatch  sent  out  by  Mr. 
Adams,  Secretary  of  State,  and,  as  we  learn  from  Mr.  Adams's  diary  and 
from  the  drafts  still  existing  in  the  Department  of  State,  modified  them 
so  as  to  adapt  them  to  his  own  scheme  of  foreign  policy.  He  conducted 
the  foreign  affairs  of  the  United  States,  therefore,  for  a  longer  period 
than  has  any  other  of  our  statesmen,  and  he  conducted  them  with 
great  success  through  great  vicissitudes. 

At  the  beginning  of  his  political  career  he  was  looked  upon  by  the 
more  sober  part  of  the  community  as  a  reckless  revolutionist.  During 
his  Presidency  he  was  regarded  by  men  of  bold  thought  as  a  cautious 
conservative.  He  was  the  only  President  except  Washington  whose 
reelection  was  unopposed.  Since  his  death  it  has  been  the  fashion  to 
speak  of  him  as  uestitute  of  force  ;  out  as  to  the  ability  and  strength 
of  will  shown  by  him  it  is  only  necessary  to  repeat  what  was  said  of 
him  by  both  Mr.  Calhoun  and  Mr.  Adams,  that  among  all  the  ])ublic 
men  with  whom  they  had  dealt  he  most  perfectly  united  conscientious- 
ness, courtesy,  thorough  knowledge  of  foreign  jjolitical  conditions,  high 
])atriotism,  national  spirit,  sound  judgment,  jiatient  industry  in  mas- 
tering details,  with  resolute  maintenance  of  purpose.  So  far  as  con- 
cerns the  negotiations  with  England  while  he  was  minister  there,  it 
may  be  truly  said,  after  an  examination  of  the  large  correspondence 
relating  to  that  era,  now  accessible,  that  not  only  is  there  uot  one  word 
coming  from  either  side  in  those  heated  controversies  which  should  lead 
a  citizen  of  the  United  States  to  look  on  him  otherwise  than  with  pride, 
but  that  in  ability,  candor,  and  fairness,  Mr.  Monroe's  papers  stand  in 
the  front  rank  of  diplomatic  documents. 

These  remarks  in  respect  to  Mr.  Monroe  may  not  appear  too  discursive 
when  it  is  recollected  that  of  the  servants  of  the  public  he  is  to  be  looked 
back  upon  as  the  one  who  was  longest,  as  minister.  Secretary,  and  Pres- 
ident, connected  with  this  Department,  and  that  in  it,  in  the  shape  of 
the  papers  left  by  him,  still  exists,  unveiled,  his  monument ;  and  it  may 

725 


§  107.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

tlius  not  be  out  of  place  to  say  how  fully,  iu  couuectioii  witli  the  docu- 
ments i^ublisbed  in  these  volumes,  these  papers  testify  to  his  high  honor, 
his  wise  statesmanship,  his  steady  faith  in  liberal  institutions,  his  devo- 
tion to  his  country  as  a  whole,  and  his  perfect  disinterestedness  and  pu- 
rity as  a  public  man. 

Mr.  Pinkney,  who  bore,  first  with  Mr.  Monroe  and  then  alone,  the 
difiScult  and  ungracious  burden  of  those  eventful  negotiations,  was, 
as  a  lawyer,  recognizee,  not  merely  by  the  body  of  the  bar  but  by 
Chief-Justice  Marshall  and  Judge  Story,  as  at  the  head  of  his  profes- 
sion, both  as  an  orator  and  a  jurist;  and  international  law  had  been  re- 
garded as  the  tield  in  which  he  was  peculiarly  master.  He  was  well 
fitted,  by  his  courtesy  and  tact,  for  diplomatic  intercourse.  So  far  from 
being  embarrassed  by  any  national  antagonism  to  England,  the  only 
criticism  made  by  him  in  this  respect  was  that  sometimes  suggested 
by  his  countrymen,  that  he  was  so  thoroughly  English  in  his  habits  as 
to  yield  too  much  socially  to  English  pretensions.  But  he  yielded  noth- 
ing in  his  public  relations.  Scrupulously  courteous  he  always  was;  but 
nowhere  are  the  arguments  for  the  positions  taken  by  the  United  States 
on  the  pending  issues  more  forcibly  put  than  in  those  emanating  from 
his  pen. 

It  may  be  said  that  in  this  notice  of  the  diplomatic  treatment  of  the 
United  States  by  Great  Britain  prior  to  the  war  of  1812  the  ungracious 
attitude  ol'  Great  Britain  is  brought  out  in  undue  prominence,  while  the 
ungracious  attitude  of  France  is  left  out  of  sight.  But  there  is  this  mate- 
rial difference.  France  wished  the  United  States  to  become  a  great  na- 
tion. Great  Britain,  not  yet  recovered  from  the  humiliation  of  the  Rev- 
olutionary war,  would  gladly  have  reduced  the  United  States  to  the  ser- 
vility of  a  dependent.  France  took  with  us  the  liberties  of  an  affectionate 
but  'somewhat  extravagant  friend.  Great  Britain,  not  yet  convinced  of 
the  permanence  of  our  independence,  maintained  towards  us  the  atti- 
tude of  an  offended  guardian,  whose  title  to  obedience  remained  although 
his  power  was  temporarily  thrown  oft".  France  looked  on  the  United 
States  with  pride,  as  a  nation  which  she  had  aided  in  bringing  into 
existence;  Great  Britain  looked  on  the  United  States  with  auger  and 
aversion,  as  a  colony  which  had  ungratefully  flung  off"  her  protecting 
hand,  and  aided  in  inflicting  on  her  a  crushing  defeat.  Undoubtedly 
Genet  was  absurdly  disrespectful,  but  his  disrespect  was  of  a  character 
utterly  different  from  the  sulky  repulsiveness  of  Hammond,  the  random 
im])erdnence  of  Merry,  the  calculated  insolence  of  Jackson.  Genet 
rushed  into  the  country  with  his  arms  open  for  an  embrace,  ready  to 
enter  into  any  alliance  we  might  propose,  no  matter  how  close  ;  Ham 
mond  stood  moodily  with  his  hands  behind  him,  refusing  even  to  an- 
swer the  most  conciliatory  business  notes.  Genet  was  offended  be- 
cause the  nation  did  not  exist  in  a  continuous  fete  devoted  to  Uberty  ; 
Hammond  was  offended  because  the  nation  existed  at  all.  Genet 
would  have  adorned  the  nation  with  liberty  caps  and  with  floral 
symbols  of  emancipation  that  might  have  appeared  absurd.  Ham- 
mond would  have  subjected  it  once  more,  at  least  in  its  foreign  pol- 
itics, to  the  yoke  of  Great  Britain.  Genet,  wheu  the  guarantee  by 
the  United  States  of  France's  West  India  ])ossessions  was  brought  to 
his  notice  by  Jefferson,  with  the  statement  that  this  guarantee  was  one 
the  United  States  had  not  the  means  to  execute,  said  at  once  that  it 
would  be  released  by  France.  When  Hammond  was  remonstrated  with 
for  the  <letention  by' Great  Britain  of  Niagara,  of  Oswego,  of  Fort  Erie, 
of  Michilimachinaw,  of  Detroit,  and  the  adjacent  territory,  in  defiance 

726 


'chap.  IV.]  NEGOTIATORS    BEFORE    1812.  [§107. 

of  treaty,  and  for  the  iucitemeut  by  British  emissaries  to  prey  on  our 
settlements,  he  remaiDed  defiantly  silent.  Genet  was  sometimes  ridicu- 
lously annoying  and.  familiar,  but  this  was  amply  atoned  for  by  his  re- 
call, and  by  the  statement  of  the  French  directory  that  if  he  remained  in 
the  country  we  might  i)unish  him  as  we  chose.  Hammond  retained  to  the 
end  his  contemptuous  seclusion,  rejecting  hosi)itaIity  and  refusing  to 
explain  grievances,  and  in  this  course,  directed  by  his  Government,  his 
Government  sustained  him.  Revolutionary  France  treated  us  with  the 
ardor  and  freedom  with  which  one  nation,  not  a  little  denionstrative, 
just  liberated  from  a  heavy  yoke,  would  be  likely  to  treat  another  a  lit- 
tle its  senior  in  the  work  of  emancipation.  To  reactionary  Great  Brit- 
ain we  still  appeared  as  a  rebellious  dependent,  to  whom  the  attitude  of 
domineering  superiority  was  to  be  maintained.  It  is  true  that  after- 
wards, when  the  French  Government  progressed  in  its  tremendous  con- 
flict with  Great  Britain,  it  authorized  outrageous  spoliations  on  our 
commerce  and  treated  with  no  little  disrespect  our  ministers  whom  we 
sent  to  call  for  redress.  (See  .svpra,  §§  83,  84;  infra,  §§  148^.,  228.) 
Great  Britain  also  did  the  same.  But  there  was  this  difference.  The 
spoliations  of  France  were  paid  for,  those  before  1800  in  the  cession  of 
Louisiana,  those  afterwards  very  tardily,  it  is  true,  but  at  last  satisfacto- 
rily by  treaty  under  Louis  Phillippe  (see  iw/ra,  §  318).  Those  of  Great 
Britain  after  1798  were  never  paid  for,  and  the  claims  were  wii)ed  out 
in  the  war  of  1812.  France,  also,  under  the  directory,  withdrew  from 
her  isolation,  and  proposed  to  receive  our  ministers  with  the  respect 
due  the  envoys  of  a  great  and  independent  nation  (see  supra,  §§  83,  84, 
85;  infra,  §  14s  ^.).  Whatever  may  have  been  the  insults  offered  to  us 
by  British  ministers.  Great  Britain,  while,  as  in  the  case  of  Jackson, 
accepting  a  dismissal,  approved  of  the  misconduct  which  required  it. 
Even  when  in  the  Napoleonic  wars  we  were  exposed  to  almost  equal 
aggressions  from  the  two  great  contending  powers,  there  was  the  same 
contrast  in  diplomatic  tone.  The  selfish  greed  of  Talleyrand  was  veiled 
in  courtesy  and  respect;  advances  from  Great  Britain,  equally  selfish, 
though  meant  to  bo  friendly,  were  embittered  by  Wellesley's  noncha- 
lent  superciliousness  or  Canning's  elaborate  sneers.  Nor  was  it  unnat- 
ural that  it  should  have  been  so.  The  peace  policy  of  Jefferson  and 
Madison,  necessary  as  it  may  have  been  at  the  time,  had  nothing  in  it 
to  break  the  illusion  of  Great  Britain  that  her  old  colonies  were  still 
more  or  less  subject  at  least  to  her  overwhelming  supremacy  on  the 
sea.  It  took  the  war  of  1812  to  destroy  this  last  pretense  of  retention 
of  her  old  authority,  and  to  place  the  diplomatic  relations  of  the  two 
powers  on  that  basis  of  mutual  respect  and  courtesy  on  which  they 
have  ever  since  remained. 

As  to  Mr.  Jackson's  dismissal,  see  further,  $  84. 

"The  Danish  convention  was  the  pioneer  treaty  for  indemnities  re- 
sulting from  maritime  spoliations,  growing  out  of  the  'continental 
system.'  That  the  success  of  the  negotiation  was,  in  a  great  <legree, 
to  be  attributed  to  the  personal  character  and  si)ecial  qualities  of  Mr. 
Wheaton  cannot  be  doubted  by  any  one  who  reads  the  passages  which 
we  have  cited  from  eminent  publicists.  An  American  Senator  ascribes 
the  result  to  the  fact  that  President  Jackson,  disregarding  in  his  case  the 
mischievous  system  which  treats  all  public  ofiices,  at  home  and  abroad, 
as  mere  rewards  for  partisan  services,  and  distributes  them  without  in- 
quiry as  to  the  peculiar  qualifications  of  the  candidates,  '  did  not  change 

727 


§  1  07.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

the  negotiator — did  not  substitute  a  raw  for  an  experienced  minister.^ 
(Benton's  Thirty  Years'  in  the  Senate,  vol.  i,  p.  603.)" 

Lawreuce's  Wheaton  (ed.  1863),  871. 

"  That  diplomacy  has  been  deeply  tainted  with  the  vices  of  dissimu- 
lation and  falsehood  is  certain.  Secret  treaties,  and  still  more  secret 
articles  annexed  to  published  treaties,  are  in  the  nature  of  lies ;  for  a 
treaty  is  essentially  a  public  engagement,  and  to  publish  a  part  as  tlie 
whole,  keeping  the  remainder  undisclosed,  is  to  palm  off  an  imposition 
upon  Europe.  And  yet  the  arguments  for  truth  aud  openness  in  inter- 
national affairs  are  plain  and  irresistible.  Without  them  there  can  be  no 
confidence,  and  on  the  confidence  which  a  diplomatist  inspires  his  whole 
success  depends.  *  *  *  'In  politics,'  said  Segur,  *  and  in  storn)y 
times,  the  true  dexterity  is  a  courageous  good  faith.  Character  saves 
men  from  the  dangers  on  which  subtlety  makes  shipwreck,  and  firm  sin- 
cerity alone  can  give  solidity  to  success  or  dignify  misfortune.'  '  It  is 
scarcely  necessary  to  say,'  wrote  Lord  Malmesbury,  among  the  sugges- 
tions which,  late  in  life,  he  sent  to  a  young  man  just  eu.tering  the  pro- 
fession, '  that  no  occasion,  no  provocation,  no  anxiety  to  rebut  an  unjust 
accusation,  no  idea,  however  tempting,  of  promoting  the  object  you 
have  in  view,  can  need,  much  less  justify,  a  falsehood.  Success  ob- 
tained by  one  is  a  precarious  and  baseless  success.  Detection  would  not 
only  ruin  your  reputation  forever,  but  deeply  wound  the  honor  of  your 
court.  If,  as  frequently  happens,  an  indiscreet  question  which  seeuis 
to  require  a  distinct  answer  is  put  to  you  by  an  artful  minister,  parry  it 
either  by  treating  it  as  an  indiscreet  question,  or  get  rid  of  it  by  a  grave 
and  serious  look,  but  on  no  account  contradict  the  assertion  flatly  if  it 
be  true,  or  admit  it  if  false  and  of  a  dangerous  tendency.'" 

Bernard  on  Diplomacy,  127. 

As  to  importance  of  American  diplomacy,  8ee  22  Atlantic   Monthly  (1868),  348. 
,    Address  by  Mr.  R.  H.  Dana,  20  Scribuer'e  Mag.,  616  (1«80). 

"In  the  ceremonies  on  all  formal  occasions  the  diplomatic  agent  will 
be  governed  by  the  established  usage  of  the  country  of  his  official  resi- 
dence. There  is  usually  at  foreign  courts  an  officer  having  charge  of 
such  ceremonial  matters,  and  it  may  often  be  advisable  to  confer  with 
him  informally  in  order  to  insure  appropriate  conformity  to  established 
rules. 

"  There  is  alsp  in  each  country  an  established  rule  as  to  official  calls. 
The  diplomatic  agent  should,  immediately  upon  his  arrival,  inform  him- 
self upon  this  subject,  and  conform  strictly  to  the  rule. 

"  If  the  legation  be  provided  with  a  secretary,  the  newly-arrived 
diplomatic  agent  should  be  accompanied  by  him  in  the  official  cere- 
mony of  presenting  credentials,  aud  in  his  subsequent  official  visits  to 
his  colleagues. 

'•  A  legation  is  not  under  the  same  necessity  of  display  ing  a  coat  of 
arms  and  raising  a  flag  as  a  consulate;'  but  it  is  in  most  capitals  cus- 
tomary to  i)lace  an  official  shield  above  the  principal  entrance  of  the 
diplomatic  agent's  residence,  or  the  offices  of  the  legation  when  these 
are  separate  from  his  residence,  with  a  short  flag-staff  set  above  the 
shield,  on  which  to  display  the  United  States  flag  on  occasions  of  special 
ceremony,  such  as  the  Fourth  of  July  and  Washington's  Birthday,  and 
also,  by  way  of  courtesy  on  any  national  celebration  in  the  country 
where  the  legation  is  situated." 

Printed  Pers.  Inst.,  Dip.  Agents,  1885. 

728 


CHAP.  IV.]  SOCIAL    INTERCOURSE.  [§  107a. 

(2j  Social  intercourse. 
5  107a. 

"  We  went  up  to  diuuer.  I  went  up  with  the  comte  alone.  He 
showed  me  into  the  room  where  were  the  ladies  and  the  company.  I 
singled  out  the  countess,  and  went  up  to  her  to  make  her  my  compli- 
ments. The  countess  and  all  the  ladies  rose  up.  I  made  my  respects  to 
them  all,  and  turned  round  and  bowed  totherest  of  the  company.  The 
count,  who  came  in  after  me,  made  his  bows  to  the  ladies,  and  to  tlie 
countess  last.  When  he  came  to  her  he  turned  round  and  called  out, 
'  Monsieur  Adams,  venez  ici,  voil^  la  Comtesse  de  Vergeimes.'  A  no- 
bleman in  the  company  said,  'Mr.  Adams  has  already  ma<le  his  court  to 
Madame  la  Comtesse.'  1  went  up  again,  however,  and  spoke  agaiu  to 
the  countess,  and  she  to  me.  When  dinner  was  served  the  comte  led 
Madame  de  Montmorin,  and  left  me  to  conduct  the  countess,  who  gave 
me  her  hand  with  extraordinary  condescension,  and  I  conducted  her  to 
table.  She  made  me  sit  next  to  her  on  her  right  hand,  and  was  remarka- 
bly attentive  to  me  the  whole  time.  The  comte,  who  sat  opposite,  was 
constantly  calling  out  to  me  to  know  Avhat  1  would  eat,  and  to  ofler  me 
petits  gateaux,  claret,  and  Madeira,  «&c.  In  short,  I  was  never  treated 
with  half  the  respect  at  Versailles  in  mj'  life. 

"  In  the  ante-chamber,  before  dinner,  some  French  gentlemen  came 
to  me  and  said  they  had  seen  me  two  years  ago;  said  that  I  had  shown 
in  Holland  that  x^mericans  understood  negotiation  as  well  as  war.  The 
compliments  that  have  been  made  me  since  my  arrival  in  France  upon 
my  success  in  Holland  would  be  considered  as  a  curiosity  if  committed  to 
writing.  '  Je  vous  felicite  sur  votre  sneers 'is  common  to  all.  One 
adds :  '  Monsieur,  ma  foi,  vous  reusse  bien  merveilleiisement.  Vous 
avez  fait  reconnoitre  votre  ind^pendance ;  vous  avez  fait  un  traits,  et 
vous  avez  procur6  de  I'argent.  Voila  un  succes parfait.'  Another  says: 
'  Vous  avez  fait  des  merveilles  en  Hollaude ;  vous  avez  culbut6  le 
iStathouder  et  le  parti  Anglois ;  vous  avez  donn6  bien  du  mouvement, 
vous  avez  remu6  tout  le  monde.'  Another  said  :  '  Monsieur,  vous  etes 
le  Washington  de  la  n^gociation.'  This  is  the  finishing  stroke.  It  is 
impossible  to  exceed  this.  Comi)liments  are  the  study  of  this  people, 
and  there  is  no  other  so  ingenious  at  them." 

Mr.  Adams'  Diaiy,  Nov.  10,  1782.    3  John  Adams'  W^orks,  306. 

"The  Vice-President  has  the  honor  to  present  his  humble  opinion  on 
the  points  proposed  for  his  consideration. 

"  1.  That  an  association  with  all  kinds  of  company,  and  a  total  seclu- 
sion from  society,  are  extremes  which,  in  the  actual  circumstiinces  of 
this  country,  and  under  our  form  of  government,  may  be  properly 
avoided. 

''2.  The  system  of  the  President  will  gradually  develop  itself  in 
practice  without  any  formal  communication  to  the  legislature  or  publi- 
cation from  the  press.  Paragraphs  in  the  public  prints  may,  however, 
appear  from  time  to  time,  without  any  foinuil  authority,  that  may  lead 
and  reconcile  the  ])ul)lic  mind. 

"3.  Considering  the  number  of  strangers  from  many  countries  and 
of  citizens  from  various  States  who  will  resort  to  the  seat  of  Govern- 
ment, it  is  doubted  whether  two  days  in  a  week  will  not  be  indispensa- 
ble for  visits  of  compliment.  A  little  experience,  however,  will  eluci- 
date this  point. 

729 


•§  107«.]  DIPLOMATIC    AGENTS,  [CHAP.  IV. 

'•  4.  liiuler  the  fourth  bead  it  is  submitted  to  consideratiou  whether 
nil  ])ersonal  ai)plicatioDS  ou^htuot  to  be  made,  in  the  first  instance,  to  a 
minister  of  state.  Yet  an  appeal  should  be  open,  by  petition,  to  the 
President,  who,  if  he  judges  the  subject  worthy  of  it,  may  admit  the 
party  to  a  personal  iuterview\  Access  to  the  supreme  magistrate  ought 
not  to  be  rigorously  denied  in  any  case  that  is  worthy  of  his  considera- 
tion. Nevertheless,  in  every  case  the  name,  quality,  and,  when  these 
are  not  suflBcient  to  raise  a  presumption  in  their  favor,  their  business 
ought  to  be  communicated  to  a  chamberlain  or  gentleman  in  waiting, 
who  should  judge  whom  to  admit  and  whom  to  exclude.  Some  limita- 
tion of  time  may  be  necessary,  too — as,  for  example,  from  eight  to  nine 
or  ten — for,  without  it.  the  whole  forenoon,  or  the  whole  day,  may  be 
taken  up. 

"5.  There  is  no  doubt  that  the  President  may  invite  what  of&cial 
characters,  members  of  Congress,  strangers,  or  citizens  of  distinction 
he  pleases  tn  small  parties  without  exciting  clamors,  but  this  should 
always  be  done  without  formality. 

"  6.  The  entertainments  mentioned  in  this  article  would  much  more 
properly  be  made  by  a  minister  of  state  for  foreign  or  domestic  aflairs, 
or  some  other  minister  of  state,  or  the  Vice-President,  whom,  upon  such 
occasions,  the  President,  in  his  private  character,  might  honor  with  his 
presence.  But  in  no  case  whatever  can  I  conceive  it  proper  for  the 
President  to  make  any  formal  )>ublic  entertainment. 

"  7.  There  can  be  no  impropriety  in  the  President's  making  or  receiv- 
ing informal  visits  among  his  friends  and  acquaintances  at  his  pleasure. 
Undress,  and  few  attendants,  will  sufficiently  show  that  such  visits 
are  made  as  a  man,  a  citizen,  a  friend,  or  acquaintance.  But  in  no  case 
whatever  should  a  visit  be  made  or  returned  -in  form  by  the  Presi- 
dent, at  least,  unless  an  Emperor  of  Germany  or  some  other  sovereign 
should  travel  to  this  country.  The  President's  pleasure  should  abso- 
lutely decide  concerning  his  attendance  at  tea-parties  in  a  private  char- 
acter, and  no  gentleman  or  lady  ought  ever  to  complain  if  he  never,  or 
rarely,  attends.  The  President's  private  life  should  be  at  his  own  dis- 
cretion, and  the  w  orld  should  respectfully  acquiesce.  As  President  he 
should  have  no  intercourse  with  society  but  upon  public  business  or 
at  his  levees.  This  distinction,  it  is  with  submission  ayjprehended, 
ought  to  govern  the  whole  conduct. 

"  8.  A  tour  might,  no  doubt,  be  made  with  great  advantage  to  the 
public  if  the  time  could  be  spared,  but  it  will  naturally  be  considered, 
as  foreign  affairs  arrive  every  day,  and  the  business  of  the  executive 
and  judicial  departments  will  require  constant  attention,  whether  the 
President's  residence  will  not  necessarily  be  confined  to  one  place." 

Vice-President  Adams  to  President  Washington,  May  17, 1789.     8  John  Adama' 

Works,  491. 
As  to  precedence  at  dinners,  see  3  John  Adams'  Works,  122,  127,  276, 305. 

"  I  can  truly  say  I  had  rather  be  at  Mount  Vernon,  with  a  friend  or 
two  about  me,  than  to  be  attended  at  the  seat  of  Government  by  the 
officers  of  state  and  the  representatives  of  every  i)0wer  in  Europe. 

"  These  visits  are  optional.  They  are  made  without  invitation.  Be- 
tween the  hours  of  3  and  4  every  Tuesday  I  am  prepared  to  receive 
them.  Gentlemen,  often  in  great  numbers,  come  and  go,  chat  with  each 
other,  and  act  as  they  please.  A  porter  shows  them  into  the  room,  and 
they  retire  from  it  when  they  please,  and  without  ceremony.  At  their 
first  entrance  they  salute  me,  and  I  them,  and  as  many  as  1  can  talk  to 

730 


CHAP.  IV.]  SOCIAL    INTEECOURSK.  [§  107a. 

I  do.  What  i)OU)i)  there  is  in  all  thi;^  I  am  unable  to  discover.  Perliaps 
it  consists  in  not  sitting'.  To  this  two  reasons  aie  opposed  :  tirst,  it  is 
unusual;  secondly,  which  is  a  more  substantial  one,  Ixcause  I  iiave  no 
room  hxrge  enough  to  contain  a  third  ofthe  chairs,  whicli  woukl  besufli- 
cient  to  admit  it.  If  it  is  supposed  that  ostentation  or  tl»e  fashions  of 
courts  (which,  by  the  by,  1  believe  originated  ofteuer  in  convenience,  not 
to  say  necessity,  than  is  generally  imagined)  gave  rise  to  this  custom, 
I  will  boldly  aflirm  that  no  supposition  was  ever  more  erroneous;  for, 
if  I  were  to  give  indulg^^nce  to  my  inclinations,  every  moment  that  1 
could  withdraw  fiom  the  fatigue  of  my  station  should  be  spent  in  re- 
tirement. That  it  is  not,  proceeds  from  the  sense  1  entertain  of  the  pro- 
priety of  giving  to  every  one  as  free  access  as  consists  with  that  respect 
which  is  due  to  the  chair  of  Government.  And  that  respect,  I  conceive, 
is  neither  to  be  acquired  nor  preserved  but  by  observing  a  just  mediuui 
between  much  state  and  too  great  familiarity." 

President  Washiugton  to  Mr.  Stuart,  June  1.5, 1790.     10  Washington's  Writings, 
100. 

"At  a  distance  from  the  theater  of  action  truth  is  not  always  related 
without  embellishment,  and  sometimes  is  entirely  perverted  from  a  mis- 
concei)tiou  of  the  causes  which  produce  the  effects  that  are  the  subjects 
of  censure.  This  leads  me  to  think  that  the  system  which  1  found  it 
indispensably  necessary  to  adopt  on  my  first  coming  to  this  city  might 
have  undergone  severe  strictures,  and  have  had  motives  very  foreign 
from  those  that  govern  me  assigned  as  causes  thereof.  I  mean,  first, 
returning  no  visits ;  secondly,  api)ointing  certain  days  to  receive  them 
generally,  not  to  the  exclusion,  however,  of  visits  on  any  other  days 
under  particular  circumstances ;  and,  thirdly,  at  first  entertaining  no 
company,  and  afterwards  (until  I  was  unable  to  entertain  any  at  all) 
contiuing  it  to  otficial  characters.  A  few  days  evinced  the  necessity  of 
the  two  first  in  so  clear  a  point  of  view  that,  had  I  not  adopted  it,  1 
should  have  been  unable  to  attend  to  any  sort  of  business,  unless  1  had 
applied  the  hours  allotted  to  rest  and  refreshment  to  this  purpose,  for 
by  the  time  I  had  done  breakfast,  and  thence  till  dinner,  and  after- 
wards till  bed  time,  I  could  not  get  relieved  from  the  ceremony  of  one 
visit  before  I  had  to  attend  to  another ;  in  a  word,  I  had  no  leisure  to 
read  or  to  answer  the  dispatches  that  were  pouring  in  ujjou  me  from  all 
quarters." 

President  Washington   to  Mr.  Stuart,  July  ^f!,  1769.     10  Washington's  Writ- 
ings, 18. 

"  Mr.  Merry  has  been  with  us  some  time.  He  appears  to  be  an  amia- 
ble man  in  private  society,  and  a  candid  and  agreeable  one  in  public 
business.  A  foolish  circumstance  of  etiquette  has  caused  some  irrita- 
bility in  Mrs.  Merry,  and  i)erhaps  himself,  but  they  will  tind  so  uniforiu 
and  sincere  a  disposition  in  all  connected  with  the  Government  to  cul- 
tivate a  cordial  society  with  them,  and  to  manifest  every  proper  respect 
for  their  character  and  station,  that  if  any  unfavorable  impression  lias 
happened  it  must  be  very  transient.  It  would  be  unfortunate  if  it  were 
otherwise,  because  a  dissatisfaction  of  whatever  sort,  or  however  pro- 
duced, might  mingle  itself  with  his  general  feelings,  and  through  them 
•with  the  agency  committed  to  him." 

Mr.  Madison  to  Mr.  Monroe,  Dec.  20,  180:3.     MSS.  Monroe  Pap.,  Dept.  of  State. 

731 


§  107a.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

"  Mr.  Merry  is  with  us,  and  we  believe  him  to  be  personally  as  desir- 
able a  character  as  could  have  been  sent  us.  But  he  is  unluckily  asso- 
ciated with  one  of  an  opposite  character  in  every  point.  She  has  already 
disturbed  our  harmony  extremely.  He  began  by  claiming  the  first  visit 
from  the  national  ministers.  He  corrected  himself  in  this.  But  a  pre- 
tension to  take  precedence  at  dinners,  &c.,  over  all  others  is  persevered 
in.  We  have  told  him  that  the  principle  of  society,  as  well  as  of  Gov- 
ernment, with  us,  is  the  equality  of  the  individuals  composing  it,  that 
no  man  here  would  come  to  a  dinner  where  he  was  to  be  marked  with 
inferiority  to  any  other,  that  we  might  as  well  attempt  to  force  our  prin- 
ciple of  equality  at  St.  James's  as  he  his  principles  of  precedence  here. 
I  had  been  in  the  habit,  when  I  invited  female  company  (having  no  lady 
in  my  family),  to  ask  one  of  the  ladies  of  the  four  Secretaries  to  come 
and  take  care  of  my  comjjany ;  and  as  she  was  to  do  the  honors  of  the 
table  I  handed  her  to  dinner  myself.  That  Mr.  Merry  might  not  con- 
strue this  as  giving  them  precedence  over  Mrs.  Merry,  I  have  discon- 
tinued it,  and  here  as  well  as  in  private  houses  the  pile- mele  practice  is 
adhered  to.  They  have  got  Yrujo  to  take  a  zealous  part  in  the  claim  of 
precedence ;  it  has  excited  generally  emotions  of  great  contempt  and 
indignation  (in  which  the  members  of  the  legislature  participate  visi- 
bly) that  the  agents  of  foreign  nations  should  assume  to  dictate  to  us 
what  shall  be  the  laws  of  our  society.  The  consequence  will  be  that 
Mr.  and  Mrs.  Merry  will  put  themselves  into  Coventry,  and  that  he  will 
lose  the  best  half  of  his  usefulness  to  his  nation,  that  derived  from  a 
perfectly  familiar  and  private  intercourse  with  the  Secretaries  and  my- 
self. The  latter,  be  assured,  is  a  virago,  and  in  the  short  course  of  a 
few  weeks  has  established  a  degree  of  dislike  among  all  classes  which 
one  would  have  thought  impossible  in  so  short  a  time.  Thornton  has 
entered  into  their  ideas.  At  this  we  wonder,  because  he  is  a  plain  man, 
a  sensible  one,  and  too  candid  to  be  suspected  of  wishing  to  bring  on 
their  recall  and  his  own  substitution.  To  counterwork  their  misrepre- 
sentations it  would  be  well  their  Government  should  understand  as 
much  of  these  things  as  can  be  communicated  with  decency,  that  they 
may  know  the  spirit  in  which  their  letters  are  written.  We  learn  that 
Thornton  thinks  we  are  not  as  friendly  now  to  Great  Britain  as  before 
our  acquisition  of  Louisiana.  This  is  totally  without  foundation.  Our 
friendship  to  that  nation  is  cordial  and  sincere,  so  is  that  with  France. 
We  are  anxious  to  see  England  maintain  her  standing,  only  wishing  she 
would  use  her  power  on  the  ocean  with  justice.  If  she  had  done  this 
heretofore  other  nations  would  not  have  stood  by  and  looked  with  uncon- 
cern on  a  conflict  which  endangers  her  existence.  We  are  not  indiffer- 
ent to  its  issue,  nor  should  we  be  so  on  a  conflict  on  which  the  existence 
of  France  should  be  in  danger.  We  consider  each  as  a  necessary  instru- 
ment to  hold  in  check  the  disposition  of  the  other  to  tyrannize  over 
other  nations.  With  respect  to  Merry,  he  appears  so  reasonable  and 
good  a  man  that  I  should  be  sorry  to  lose  him  as  long  as  there  remains 
a  possibility  of  reclaiming  him  to  the  exercise  of  his  own  dispositions. 
If  his  wife  perseveres  she  must  eat  her  soup  at  home,  and  we  shall 
endeavor  to  draw  him  into  society  as  if  she  did  not  exist.  It  is  unfor- 
tunate that  the  good  understanding  of  nations  should  hang  on  the 
caprice  of  an  individual  who  ostensibly  has  nothing  to  do  with  them." 

Presldeut  JeflFerson  to  Mr.  Monroe,  Jan.  8,  1804.     (Unofficial.)     MSS.  Monroe 
Pap.,  Dept.  of  State. 

732 


CHAP.  IV.]  SOCIAL    INTERCOURSE.  [§  107rt. 

The  next  step  was  as  follows : 

"  Thomas  Jelfersoii  asks  the  favor  of  Mr.  Merry  to  dine  with  a  small 
party  of  friends  on  Monday,  the  13llb,  at  half  past  three. 

"  February  9,  1804." 

Mr.  Merry  replied  at  once,  saying  that  he  had  "  engaged  some  com- 
pany to  dine  with  him  on  that  day.  Under  the  circumstances,  how- 
ever, he  would  have  informed  himself  whether  it  is  the  usage,  as  is  the 
case  in  most  countries,  for  i)rivate  engagements  of  every  kind  to  give 
way  to  invitations  from  the  Chief  Magistrate  of  the  United  States; 
and  if  such  were  the  usage,  he  would  not  have  failed  to  have  alleged 
it  as  a  just  apology  for  not  receiving  the  company  he  has  invited.  But 
after  the  communication  which  Mr.  Merry  had  the  honor  to  receive 
from  Mr.  Madison  on  the  12th  of  last  month,  respecting  the  alteration 
which  the  President  of  the  United  States  had  thought  i)roper  should 
take  i)lace  in  regard  to  the  treatment  to  be  observed  by  the  Executive 
Government  towards  foreign  ministers  from  those  usages  which  had 
been  established  l)y  his  predecessors,  and  after  the  reply  which  Mr. 
Merry  had  the  honor  to  make  to  that  notice,  stating  that  notwithstand- 
ing all  his  anxiety  to  cultivate  the  most  intimate  and  cordial  intercourse 
vwth  every  (member)  of  the  Government,  he  could  not  take  ui)on  him- 
self to  acquiesce  in  that  alteration,  on  account  of  its  serious  nature, 
which  he  would,  therefore,  report  to  his  own  Government,  and  wait  for 
their  instructions  upon  it ;  it  is  necessary  that  he  should  have  the  honor 
of  observing  to  Mr.  Madison  that,  combining  the  terms  of  the  invitation 
above  mentioned  with  the  circumstances  which  had  preceded  it,  Mr. 
Merry  can  only  understand  it  to  be  addressed  to  him  in  his  private  ca- 
pacity, and  not  as  His  Britannic  Majesty's  minister  to  the  United  States. 
Now,  however  anxious  he  may  be,  as  he  certainly  is,  to  give  effect  to 
the  claims  above  expressed,  of  conciliating,  personally  and  privately, 
the  good  opinion  and  esteem  of  Mr.  Jefferson,  he  ho])es  that  the  latter 
•will  feel  how  improper  it  would  be  on  his  part  to  sacrifice  to  that  desire 
the  duty  which  he  owes  to  his  sovereign,  and  consequently,  how  impos- 
sible it  is  for  him  to  lay  aside  the  consideration  of  his  public  character. 
If  Mr.  Merry  should  be  mistaken  as  to  the  meaning  of  Mr.  Jefferson's 
note,  and  it  should  prove  that  the  invitation  is  designed  for  him  in  iiis 
public  capacity,  he  trusts  that  Mr.  Jefferson  will  feel  equally  tliat  it 
must  be  out  of  his  power  to  accept  it,  without  receiving  previously, 
through  the  channel  of  the  Secretary  of  State,  the  necessary  formal 
assurances  of  the  President's  determination  to  observe  towards  him 
those  usages  of  distinction  which  have  heretofore  been  shown  by  the 
Executive  Government  of  the  United  States  to  the  i)ersons  who  have 
been  accredited  to  them  as  His  Majesty's  ministers. 

"  Mr.  Merry  has  the  honor  to  request  of  Mr.  Madison  to  lay  this  ex- 
planation before  the  President,  and  to  accompany  it  with  the  strongest 
assurances  of  his  highest  respect  and  consideration. 

"Washington,  February  9,  1804." 

To  this  Mr.  Madison  replied  as  follows  : 

"Mr.  Madison  presents  his  compliments  to  Mr.  Merry.  He  has  com- 
municated to  the  President  Mr.  Merry's  note  of  this  morning,  and  has 
the  honor  to  remark  to  him  that  the  President's  invitation,  being  in  the 
style  used  by  him  in  like  cases,  had  no  reference  to  the  points  of  form 
which  will  deprive  him  of  the  pleasure  of  Mr.  Merry's  company  at  din- 
ner on  ^londay  next. 

"Mr.  Madison  tenders  to  Mr.  Merry  his  distinguished  consideration. 

"Washington,  February  9,  1804."  ' 

733 


^  107a.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Mr.  Madison  thus  comments  on  the  above  incidents  in  a  letter  to  Mr. 
Monroe,  then  on  a  special  mission  to  England : 

"WASHINGTON,  February  16,  1804. 

"  Dear  Sir  :  In  a  private  letter  by  Mr.  Baring  I  gave  you  a  detail 
of  what  had  passed  here  on  the  subject  of  etiquette.  I  had  hoped  that 
no  further  jars  would  have  ensued,  as  I  still  hope  that  the  good  sense 
of  the  British  Government  respecting  the  rights  of  the  Government 
here  to  fix  its  routes  of  intercourse,  and  the  sentiments  and  manners  of 
the  country  to  which  they  ought  to  be  adapted,  will  give  the  proper 
instructions  for  preventing  like  incidents  in  future.  In  the  mean  time, 
a  fresh  circumstance  has  taken  place,  which  calls  for  explanation. 

"The  President,  desirous  of  keeping  open  for  cordial  civilities  what- 
ever channels  the  scruples  of  Mr.  Merry  might  not  have  closed,  asked 
me  what  these  were  understood  to  be,  and  particularly  whether  he 
would  come  and  take  friendly  and  familiar  dinners  with  him.  I  un- 
dertook to  feel  his  pulse  through  some  hand  that  would  do  it  with 
the  least  impropriety.  From  the  information  obtained,  I  inferred  that 
an  invitation  would  be  readily  accepted,  and  with  the  less  doubt,  as  he 
had  dined  with  me  (his  lady  declining),  after  the  offense  originally 
taken.  The  invitation  was  accordingly  sent,  and  terminated  in  the 
note  from  him  to  me,  and  my  answer  herewith  inclosed.  I  need  not 
comment  on  this  display  of  diplomatic  superstition,  truly  extraordinary 
in  this  age  and  in  this  country.  We  are  willing  to  refer  it  to  the  per- 
sonal character  of  a  man  accustomed  to  see  importance  in  such  trifles^ 
and  over  cautious  against  displeasing  his  Government  by  surrendering 
the  minutest  of  his  or  its  pretensions.  What  we  apprehend  is,  that 
with  these  causes  may  be  mingled  a  jealousy  of  our  disposition 
towards  England,  and  that  the  mortifications  which  he  has  inflicted  oo 
himself  are  to  be  set  down  to  that  account.  In  fact,  it  is  known  that 
this  jealousy,  particularly  since  the  final  adjustment  with  France,  ex- 
ists, or  is  affected  in  a  high  degree,  and  will  doubtless  give  its  color  to> 
the  correspondence  of  the  legation  with  its  Government.  To  apply 
an  antidote  to  this  poison  will  require  your  vigilant  and  prudent  atten- 
tion. It  can  scarcely  be  believed  that  the  British  Government  will  not 
at  once  see  the  folly  committed  by  its  representative,  especially  in  the 
last  scene  of  the  farce,  and  that  it  will  set  him  right  in  that  respect. 
But  it  may  listen  with  a  different  ear  to  the  suggestions  that  the  United 
States,  having  now  less  need  of  the  friendship  of  Britain,  may  be  yield- 
ing to  a  latent  enmity  towards  her.  The  best  of  all  proofs  to  the  con- 
trary would  be  the  confidential  communications  you  possess,  if  it  were 
not  an  improper  condescension  to  disclose  them  for  such  a  purpose. 
Next  to  that  is  the  tenor  of  our  measures,  and  the  dictates  of  our  obvi- 
ous policy,  on  an  appeal  to  both  of  which  you  may  found  the  strongest 
assurances  that  the  Government  of  the  United  States  is  sincerely  and 
anxiously  disposed  to  cultivate  harmony  between  the  two  nations.  The 
President  wishes  to  lose  no  opportunity,  and  spare  no  pains  that  may 
be  necessary  to  satisfy  the  British  administration  on  this  head,  and  to 
l^revent  or  efface  any  different  impressions  which  may  be  transmitted 
from  hence. 

"  I  collect  that  the  cavil  at  the  pele  mSle  here  established  turns  much 
on  the  alleged  degradation  of  ministers  and  envoys  to  a  level  with 
charges  d'affaires.  The  truth  is,  and  I  have  so  told  Mr.  Merry,  that  this 
is  not  the  idea ;  that  the  President  did  not  mean  to  decide  anything  as 

734 


CHAP.  IV.]  SOCIAL    INTERCOURSE.  [§  10 


I  a. 


to  tbeir  comparative  grades  or  importance;  that  these  wouhl  be  esti- 
mated as  heretofore;  that  among  themselves  they  miglit  fix  their  own 
ceremonies,  and  that  even  at  th^ President's  table  they  might  seat 
themselves  in  any  subordination  they  pleased.  All  he  meant  was,  that 
no  seats  were  to  be  designated  for  them,  nor  the  order  in  which  they 
might  happen  to  set  to  be  any  criterion  of  the  respect  paid  to  their 
respective  commissions  or  countries.  On  public  occasions,  such  as  an 
inaugural  speech,  &c.,the  heads  of  Departments,  with  foreign  ministers, 
and  others,  invited  on  the  part  of  the  Government,  would  be  in  the 
same  pele  mele  Mithin  the  space  assigned  them.  It  may  not  be  amiss 
to  recollect  that  under  the  old  Congress,  as  I  understand,  and  even  in 
the  ceremonies  attending  the  introduction  of  the  new  Government,  the 
foreign  ministers  were  placed  according  to  the  order  in  which  their 
Governments  acknowledged  by  treaties  the  independence  of  the  United 
States.  In  this  point  of  view  the  pile  mele  is  favorable  both  to  Great 
Britain  and  to  Spain. 

''I  have,  I  believe,  already  told  you  that  the  President  has  discoun- 
tenanced the  banding  first  to  the  table  the  wife  of  a  head  of  Depart- 
ment, applying  the  general  rule  of  pele  mele  to  that,  as  to  other  cases 

"  The  Marquis  d'Yrujo  joined  with  Merry  in  refusing  an  invitation, 
from  the  President,  and  has  throughout  made  a  common  cause  with  liim, 
not,  however,  approving  all  the  grounds  taken  by  the  latter.  His  case 
is,  indeed,  dilferent,  and  not  a  little  awkward,  having  acquiesced  for 
nearly  three  years  in  the  practice  against  which  he  now  revolts. 
Pichon,  being  a  charge  only,  was  not  invited  into  the  pretensions  of 
the  two  plenipotentiaries.  He  blames  their  contumacy,  but  I  find  he 
has  reported  the  aftair  to  his  Government,  which  is  not  likely  to  pat- 
ronize the  cause  of  Merry  and  Yrujo. 

"  Thornton  has  also  declined  an  invitation  from  the  President.  This 
shows  that  he  unites  without  necessity  with  Merry.  He  has  latterly 
expressed  much  jealousy  of  our  views,  founded  on  little  and  unmean- 
ing circumstances." 

See  2  Madison's  Writings,  195. 

A  letter  similar  in  substance,  but  of  greater  length,  was  sent  to  Mon- 
roe on  this  subject  January  19,  1804. 

''  Mr.  Merry  is  perhaps  kept  as  yet  a  little  (disturbed)  by  the  scruples  of 
etiquette.  1  invited  him  and  his  lady  to  make  us  a  visit,  and  notwith- 
standing the  public  (obstacle)  interposed  by  him  to  official  civilities,  I 
should  gladly  have  drawn  him  into  the  circle  of  private  hospitality.  He 
has  never  dropped  a  word  on  the  subject  of  etiquette  lately.  I  suspect 
that  his  Government  has  been  silent  and  left  him  to  all  the  embarrass- 
ment resulting  from  that  course.  He  is  at  bottom  a  very  worthy  man 
and  easy  to  do  business  with." 

Mr.  Madison,  Sec.  of  State  (unofficial),  to  Mr.  Monroe,  July  21,  1804.     Monroe 
Pap. 

"  It  here  occurs  to  us  that  we  have  omitted  to  mention  a  circumstance 
which  aftbrded  the  subject  of  much  new  Federal  indignation.  We  will 
let  Mr.  Thomas  Moore,  the  Irish  poet,  preface  it  in  a  passage  taken  from 
a  letter  he  wrote  to  his  mother  from  Baltimore,  June  13,  1804,  which  is 
l)ublished  in  Lord  John  Russell's  Memoirs,  Journal  and  Correspondence 
of  Moore  (vol.  i,  p.  1C2). 

735 


§  107a.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

'' '  I  (writes  Moore)  stopj)ed  at  Washington  with  Mr.  and  Mrs.  Merry  for 
near  a  week.  They  have  been  treated  with  the  most  pointed  incivility 
by  the  present  Democratic  President,  Mr.  Jefferson,  and  it  is  only  the 
precarious  situation  of  Great  Britain  which  could  possibly  induce  it  to 
overlook  such  indecent,  though  at  the  same  time  petty,  hostility.  I 
was  jjresented  by  Mr.  Merry  to  both  the  Secretary  of  State  and  the 
President.' 

"  The  indecent  and  petty  hostility  to  Mr.  and  Mrs.  Merry  was  mani- 
fested in  this  wise  :  They  were  invited  to  dine  at  the  President's.  When 
dinner  was  announced  Mr.  Jefferson  chanced  to  be  standing  by  and 
talking  with  Mrs.  Madison  at  some  distance  from  Mrs.  Merry,  and  he 
accompanied  the  former  to  the  table.  Mr.  Merry  regarded  this  as  almost 
an  insult. 

"Such  a  stir  was  made  by  the  angry  embassador  that  Mr.  Madison 
wrote  Monroe  (who  had  succeeded  iMr.  King  as  our  minister  to  England), 
apprising  him  of  the  facts,  to  enable  him  to  answer  an  expected  call  of 
the  British  Government  for  official  explanation.  Monroe,  however,  got 
his  first  information  from  a  friendly  British  under-secretary,  who  inti- 
mated that  he  would  soon  probably  hear  of  the  matter  through  a  differ- 
ent channel.  The  minister  was  delighted.  Within  a  very  short  period 
the  wife  of  an  English  under-secretary  had  been  accorded  precedence 
over  his  own,  under  analogous  circumstances.  He  had  no  great  fund 
of  humor,  but  the  absurdity  of  the  whole  affair,  and  the  excellent  mate- 
rials in  his  possession  for  a  reply  to  a  call  for  explanations,  struck  him 
in  a  most  amusing  light.  Shaking  with  merriment,  he  hinted  to  his 
informant  the  satisfaction  the  call  would  give  him.  He  never  after- 
wards heard  a  lisp  on  the  subject. 

"Mrs.  Merry  tossed  her  head  without  shaking  the  peace  of  two 
nations,  and  poor  Mrs.  Madison  was  saved  from  involuntarily  'firing 
another  Tory.'  But  Merry  never  forgot  this  '  pointed  incivility,'  though 
he  and  his  friends  knew  that,  by  an  express  regulation  at  the  White 
House,  all  etiquette  in  resjiect  to  official  precedence  was  formally  abol- 
ished, and  though  with  the  most  stringent  etiquette  of  the  Celestial 
Empire  in  force,  it  would  seem  an  amusing  specimen  of  impertinence  for 
him  to  claim  juiority  over  the  Secretary  of  State  of  the  United  States. 

"But  the  farce  was  not  ended.  Mrs.  Merry  thenceforth  eschewed 
the  Presidential  Mansion;  and  if  her  husband  went  there,  it  was  only 
oflttcially.  After  the  clamor  subsided  the  President  felt  a  good-natured 
desire  to  put  an  end  to  this  frivolous  matter,  and  to  relieve  the  offended 
dignitaries  from  the  awkwardness  of  their  position.  Accordingly  he 
made  inquiry  through  a  common  friend  (the  representative,  we  think, 
of  the  Swedish  Government)  whether  Mr.  and  Mrs.  Merry  would  accept 
an  invitation  to  a  family  dinner.  The  former  was  understood  to  give 
an  affirmative  answer,  and  the  invitation  was  sent,  written  in  the  Presi- 
dent's own  hand.  The  minister  replied  by  addressing  the  Secretary  of 
State  to  know  whether  he  was  invited  in  his  private  or  his  official  capac- 
ity; if  in  the  one,  he  must  obtain  the  permission  of  his  sovereign;  if  in 
the  other,  he  must  receive  an  assurance  in  advance  that  he  would  be 
treated  as  became  his  position.  The  'Secretary  of  State'  put  an  end 
to  the  correspondence  in  a  very  dry  note;  and  here  the  affair  ended." 

3  Randall's  Life  of  Jeiferson,  115  ff. 

"Where  you  are,  although  it  is  not  pleasant  to  fall  short  in  returning 
civilities,  yet  necessity  has  rendered  this  so  familiar  in  Euroj^e  as  not 
736 


CHAP.  IV.]  SOCIAL  INTERCOURSE.  [§  107a. 

to  lesseu  respect  for  the  person  where  circumstauces  do  uot  permit  a 
retnru  of  hospitalities." 

Mr.  Jefl'ersou,  President,  to  Mr.  Mouioe,  miuister  at  Paris,  Jan.  8,  1804.     Mon- 
roe MSS.,  Dept.  of  State. 

"The  gentlemen  who  composed  General  Washington's  first  adminis- 
tration took  up  universally  a  feature  of  general  hospitality,  whicli  was 
unnecessary,  destructive  of  business,  and  so  oppressive  to  themselves 
that  it  was  among  the  motives  to  their  retirement.  Their  successors 
profited  by  the  experiment  and  lived  altogether  as  private  individuals, 
and  so  have  ever  continued  to  do.  Here  (at  Washington),  indeed,  it  can- 
not be  otherwise,  our  situation  being  so  rural  that  during  the  vacations 
of  the  legislature  we  shall  have  no  society  but  of  the  officers  of  the 
Government,  and  in  time  of  sessions  the  legislature  is  become  and  be- 
coming so  numerous,  that  for  the  last  half  dozen  years  nobody  but  the 
President  has  pretended  to  entertain  them." 

Mr.  Jeft'ersou,  President,  to  Mr.  R.  E.  Livingston,  Dec.  4, 1806.  4  Jeft".  Works,  337. 

According  to  Mr.  Jackson,  in  a  letter  writen  by  him  when  British 
minister  at  Washington,  on  October  20,  1800  (liath  Archives,  Jack- 
son Correspondence,  2d  series,  I,  26),  "  a  foolish  question  of  procedure, 
which  ever  since  Merry's  time  has  been  unsettled,  and  has  occasioned 
some  heartburnings  amongst  the  ladies,  was  decided  *  *  *  by  the 
President  (Madison),  departing  from  his  customary  indiflercnce  to  cere- 
mony and  etiquette,  by  taking  Elizabeth  (Mrs.  Jackson)  in  to  dinner, 
while  I  escorted  Mrs.  Madison."  (See  also  Mr.  Jackson  more  fullv,  su2)ra, 
§107.) 

In  January,  1851,  the  Brazilian  minister,  at  a  non-official  dinner  i)arty 
at  Mr.  Webster's  house,  was  placed  at  table  after  Sir  H.  Bulwer,  who, 
however,  had  been  of  later  arrival  at  Wasliinuton.  The  Brazilian  min- 
ister then  addressed  a  letter  to  Mr.  Webster,  which  contained  the  fol- 
lowing passage : 

"  It  is  a  princii)le  established  by  the  congress  of  Vienna,  and  adopted 
by  all  the  civilized  nations,  even  those  who  were  not  represented  there 
(as  the  United  States  and  Brazil),  that  the  precedence  between  the  dip- 
lomatic agents  of  the  same  cajiacity  must  be  established  only  by  the 
priority  of  the  presentations  of  their  credentials.  Being  yesterday 
l)resent  at  your  table,  the  minister  of  Mexico,  I,  and  the  minister  of 
Great  Britain,  your  excellency  gave  the  first  places  to  the  minister  of 
Great  Britain  and  his  lady,  contrary  to  the  rules  above  mentioned." 

This  was  followed  by  something  of  an  argument  to  sustain  the  posi- 
tion taken. 

Mr.  Webster's  letter  was  as  follows  : 

"  Sir:  I  have  to  acknowledge  the  receipt  of  your  letter  of  the  25th 
instant: 

"It  happens  to  be  my  fortune  not  to  be  entirely  unacquainted  with  the 
rules  adopted  by  the  treaty  of  Vienna,  respecting  tlie  rank  of  diplomatic 
agents,  and  although  the  Government  of  the  United  States  was  no  party 
to  this  treaty  it  has  usually  conformed  to  what  was  then  established, 
as  being  the  regulation  prevailing  with  other  states.  But  the  treaty 
of  Vienna,  like  other  treaties,  affects  only  official  acts,  and  does  not 

S.  Mis.  162— VOL.  I- 47  '^'^'^  • 


§  101  a.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

assume  to  .i;ive  the  law  to  private  intercourse ;  aud  although  I  exceed- 
ingly regret  that  anything  should  have  occurred  to  cause  you  concern, 
yet  i  am  sure  you  will  see,  upon  consideration,  that  the  private  hospi- 
tality of  my  own  house  may  be  regulated  by  my  own  discretion,  without 
being  made  the  subject  of  dii)lomatici  representation. 
"Your  obedient  servant,  etc. 

The  Brazilian  minister  in  reply  accepted  this  explanation,  saying: 
"  I  shall  not  discuss  the  distinction  established  by  your  excellency 
between  official  acts  and  the  private  hospitality  of  the  Secretary  of  State 
to  the  diplomatic  agents.  I  rather  accept  it  as  saving  the  principles 
which  seemed  to  me  to  be  put  in  doubt  on  account  of  the  incident  then 
mentioned." 

Sir  H.  Bulwer,  being  appealed  to,  sustained  the  position  that  "a 
private  party"  was  to  be  distinguished  from  an  official  ceremony,  to 
which  alone  treaties  could  apply." 

2  Curtis's  Life  of  Webster,  563-565. 

A  minister  of  the  United  States  is  required,  as  far  as  possible,  to  cult- 
ivate kindly  relations  with' other  foreign  ministers  in  the  place,  and  to 
enter  into  no  controversy  with  them  which  could  be  avoided  without 
loss  of  personal  self  respect  and  propriety. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Webb,  Feb.  6,  1863.     MSS.  lust., Brazil. 

Mr.  Schuyler  (Am.  Diplomacy,  155),  says : 

"  Ceremonial  and  social  duties  take  up  a  large  part  of  a  minister's  time, 
but  those  who  have  been  noted  as  our  best  and  ablest  representatives 
have  always  been  most  punctilious  in  their  performance.  No  man  has 
ever  served  us  better  than  Mr.  John  Quiucy  Adams ;  and  yet  we  may 
see  from  his  'Diary'  that  night  after  night  he  went  into  society,  danced, 
played  cards,  talked,  and  ingratiated  himself  with  the  people  about  him. 
In  spite  of  certain  peculiarities  derived  from  his  Puritan  ancestry, 
jjeculiarities  which  were  sometimes  disagreeable  when  they  showed 
themselves,  Mr.  Adams  was  a  man  not  only  fond  of  society,  but  very 
])opular  in  society,  and,  in  a  word,  combined  the  most  useful  external 
diplomatic  qualities  with  those  of  intellect,  study,  and  experience." 

This,  however,  may,  so  far  as  Mr.  Adams'  diplomatic  tone  is  con- 
cerned, be  open  to  question.  In  one  of  his  confidential  letters  to  Mr. 
Monroe,  when  President,  he  speaks,  as  is  seen,  of  the  softening  of  his 
style  by  ]Mr.  Monroe  before  his  instructions  and  notes  went  out.  And 
even  when  thus  modified,  the  curt  style  of  his  diplomatic  papers,  ex- 
traordinarily able  as  they  were,  was  the  subject  of  much  criticism. 

"A  dii)lomatic  agent  should  omit  no  occasion  to  maintain  the  most 
friendly  personal  and  social  relations  with  the  members  of  the  Govern- 
ment and  of  the  diplomatic  body  at  the  place  of  his  residence;  but  it  is 
not  to  be  expected  that  he  shall  incur  onerous  charges  for  hospitality 
and  entertainment. 

"  While  the  social  relations  of  a  diplomatic  agent  to  his  own  country- 
men resident  in  or  visiting  the  capital  where  he  resides  should  be  cor- 
dial, they  have  no  claim  upon  his  hospitality  requiring  him  to  assume 
expenses  or  burdens  not  in  accord  with  his  official  duties  or  compensa- 
tion." 

Printed  Pers.  Inst.,  Dii>.  Agents,  1885. 

738 


CHAP.  IV.]  COURT  DRESS.  [§  1076. 

(3)   COUItT  DUKSS. 

§  107b. 

"From  a  suitable  respect  to  what  is  uiulerstood  to  bo  the  nsajje  at 
the  several  courts  of  Europe,  requiriug-  tlie  members  of  the  dipUmiatic 
body  accredited  to  them  to  wear  a  court  dress  upon  established  occa- 
sions, such  as  their  presentation  to  the  sovereijrns,  or  chief  executive 
officers  of  these  Governments,  respectively,  &c.,  the  President  has 
thought  fit  to  adopt  the  following  as  the  dress  to  be  used  by  our  min- 
isters and  other  diplomatic  agents  ui)on  all  such  occasions,  which  is 
recommended  as  well  by  its  comparative  cheapness  as  its  adaptation  to 
the  simplicity  of  our  institutions,  viz  : 

"A  black  coat,  with  a  gold  star  on  each  side  of  the  collar,  near  its 
termination ;  the  under  clothes  to  be  black,  blue,  or  white,  at  the  option 
of  the  wearer,  a  three-cornered  chapeau  de  bras,  a  black  cockade  and 
eagle,  and  a  steel-mounted  sword,  with  a  white  scabbard.  It  is  to  be 
understood,  however,  that  the  use  of  this  particular  dress  is  not  pre- 
scribed by  the  President.  It  is  barely  suggested,  by  his  direction  as  an 
appropriate  and  a  convenient  uniform  dress  for  the  use  of  our  ministers, 
and  other  diplomatic  agents  of  the  United  States." 

Mr.  Van  Bureu,  Sec.  of  State,  to  Mr.  Van  Ness,  Oct,  2,  1829.     MSS.  lust..  Min- 
isters. 

"  The  fashion  of  the  coat  recommended  for  the  use  of  our  ministers, 
&c.,  upon  occasions  when  full  dresses  are  required  by  the  usages-of  the 
courts  to  which  they  are  accredited,  is  a  single-breasted  one,  with  a 
standing  collar,  though  they  are  left  at  perfect  liberty,  by  the  personal 
and  circular  instructions  which  are  addressed  to  all  of  them  by  this 
Department,  to  consult  and  be  governed  bj'  their  own  taste  in  the 
adoption  of  any  other  that  may  be  more  agreeable  to  them.  The  fash- 
ion recommended  was  supposed  to  be  correspondent  with  the  simplicity 
of  our  iusticutions,  and  was  believed  tt)  be  sufficiently  distinguished 
for  all  the  purposes  intended,  and  it  is  for  these  reasons,  and  for  the 
sake  of  uniformity,  recommended,  but  not  prescrihed,  for  their  adoi)tion. 
We  were  unapprised  till  the  receipt  of  your  letter  that  our  ministers  at 
London  and  Paris  had  adopted  a  different  fashion." 

Mr.  Van.  Bureu,  Sec.  of  State,  to  Mr.  Van  Ness,  Mar.  3,  18:U.     MSS.  lust.,  Min- 
isters. 

"  I  deem  it  proper,  however  distasteful  the  subject  may  be  both  to 
you  and  myself,  to  relate  to  you  a  conversation  which  I  had  on  Tues- 
day last  with  Major  General  Sir  Edward  Cust,  the  master  of  ceremo- 
nies at  this  court,  concerning  my  court  costume.  I  met  him  at  tlu^  Trav- 
eler's Olub,  and,  after  an  introduction,  your  circular  on  this  subject  be- 
came the  topic  of  conversation.  He  expressed  much  opposition  to  my 
appearance  at  court  in  the  simple  dress  of  an  American  citizen.  1  said 
that  such  was  the  wish  of  my  own  Government,  and  1  intended  to  con- 
form to  it,  unless  the  Queen  herself  would  intimate  her  desire  that  I 

739 


§  HUh.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

should  appear  in  coBtuiue.  lu  that  event  I  should  feel  inclined  to  com- 
ply with  Her  Majesty's  wishes.  He  said  that  Her  Majesty  would  not 
object  to  receive  me  at  court  in  any  dress  I  chose  to  put  on,  but, 
whilst  he  had  no  authority  to  speak  for  her,  he  yet  did  not  doubt  it 
would  be  disagreeable  to  her  if  I  did  not  conform  to  the  established 
usage.  He  said  I  could  not,  of  course,  expect  to  be  invited  to  court 
balls  or  court  dinners,  where  all  appear  in  costume;  that  Her  Majesty 
never  invited  the  bishops  to  balls,  not  deeming  it  compatible  with 
their  character;  but  she  invited  them  to  concerts,  and  on  these  occa- 
sions, as  a  court  dress  was  not  required,  I  would  also  be  invited.  He 
grew  warm  by  talking,  and  said  that  whilst  the  Queen  herself  would 
make  no  objections  to  my  appearance  at  court  in  any  dress  I  thought 
l)roper,  yet  the  j>eople  of  Eugland  w^ould  consider  it  presumption.  I 
became  somewhat  indignant,  in  my  turn,  and  said  that,  whilst  I  enter- 
tained the  highest  respect  for  Her  Majesty,  and  desired^to  treat  her 
w  ith  the  deference  which  was  eminently  her  due,  yet  it  woukl  not  mak(^ 
the  slightest  difference  to  me  individually  whether  I  ever  api)eared  ?.t 
court. 

"  He  stated  that  in  this  country  an  invitation  from  the  Queen  was 
considered  a  command. 

"  I  paid  no  attention  to  this  remark,  but  observed  that  the  rules  of 
etiquette  at  the  British  court  were  more  strict  even  than  in  Russia. 
Senator  Douglas,  of  the  United  States,  had  just  returned  from  St.  Pe- 
tersburg-. When  invited  to  visit  the  Czar  in  costume  he  informed  Count 
Nesselrode  that  he  could  not  thus  appear.  The  count  asked  him  in 
what  dress  he  appeared  before  the  President  of  the  United  States.  Mr. 
Douglas  answered  in  the  very  dress  he  then  wore.  The  count,  after 
consulting  the  Emperor,  said  that  Avas  sufficient,  and  in  this  plain  dress 
he  visited  the  Emperor  at  the  palace  and  on  parade,  and  had  most 
agreeable  conversations  with  him  on  both  occasions. 

"  Sir  Edward  tiien  expressed  his  gratification  at  having' thus  met  me 
accidentally;  said  he  had  just  come  to  town  for  that  day,  and  should 
leave  the  next  morning,  but  would  soon  do  himself  the  honor  of  calling' 
upon  me. 

•'Although  he  disclaimed  speaking  by  the  authority  of  the  Queen, 
yet  it  apjjeared  both  to  myself  and  Colonel  Lawrence,  who  was  present, 
that  they  must  have  had  some  conversation  in  the  court  circle  on  the 
subject.  I  entertain  this  belief  the  more  firmly  as  Sir  Edward  has  since 
talked  to  a  member  of  this  legation  in  the  same  strain. 

"  So  then,  from  present  appearances,  it  is  probable  I  shall  be  placed 
socially  in  Coventry  on  this  question  of  dress,  because  it  is  certain  that 
should  Her  Majesty  not  invite  the  American  minister  to  her  balls  and 
dinners,  he  will  not  be  invited  to  the  balls  and  dinners  of  her  courtiers. 
This  will  be  to  me,  personally,  a  matter  of  not  the  least  importance,  but 
it  may  deprive  me  of  the  opportunity  of  cultivating  friendly  and  social 
relations  with  the  ministers  and  other  courtiers  which  I  might  render 
available  for  the  purpose  of  obtaining  important  information  and  pro 
moting  the  success  of  my  mission. 

"  1  am  exceedingly  anxious  to  appear  '  at  court  in  the  simple  dress  of 
an  American  citizen,'  and  this  not  only  because  it  accords  with  my  own 
Taste,  but  because  it  is  certain  that,  if  the  minister  to  the  court  of  St. 
James  should  ap])ear  in  uniform,  your  circular  will  become  a  dead  letter 
in  regard  to  most,  if  not  all,  the  other  ministers  and  charges  of  our 
country  in  Europe. 

740 


CHAP.  TV.]  COURT  DRESS.  [§  lOlh. 

"The  difficulty  in  the  present  case  is  greatly  cnliaiiced  by  the  fact  that 
the  sovereign  is  a  lady,  and  the  devotion  of  Ihm-  siibjeitts  towaids  her 
I)artakes  of  a  mingled  feeling  of  loyalty  and  gallantry.  Any  eonduc^t, 
therefore,  on  my  part  which  would  look  like  disreisi)ect  to\var<ls  her 
])ersonally  could  not  fail  to  give  great  ofleuse  to  tlie  Dritish  peoi>h'. 
Should  it  prove  to  be  impossible  for  me  to  conform  to  the  suggesticiiis 
of  the  circular,  in  regard  to  dress  '  without  detriment  to  the  ])ublic 
interest,'  and  '  without  impairing  my  usefulness  to  my  country,'  then  I 
shall  certainly  and  cheerfully  be  guided  by  its  earnest  recommendation 
and  'adopt  the  nearest  approach  to  it  compatible  with  the  dueiHnform- 
ance  of  my  public  duties.'  This  course  I  pursued  from  choice  whilst 
minister  in  Kussia,  and  this  course  I  should  have  pursued  here  without 
instructions." 

Mr.  Buclianau,  minister  at  Loudon,  to  Mr.  Marcy,  Sec.  of  State,  Oct.  28, 18.'j3. 
MSS.  Dispatches,  Gr.  Brit.    2  Curtis'  Buchanan,  107. 

Mr.  G.  T.  Curtis  (2  Curtis'  Buchanan,  110)  states  the  subsequent  pro- 
ceeding as  follows : 

"  As  the  court  wgs  not  in  London  at  the  time  when  this  letter  was 
written,  the  portentous  question  of  Mr.  Buchanan's  costume  was  not 
likely  to  be  brought  to  an  immediate  solution.  But  early  in  February 
(1854),  Parliament  was  to  be  opened  by  the  Queen  in  person.  Mr.  Bu- 
chanan did  not  attend  the  ceremony,  and  thereupon* there  was  an  out- 
cry in  the  London  press.  The  following  extract  from  a  dispatch  to  Mr. 
Marcy  gives  a  full  account  of  the  whole  matter,  up  to  the  date: 

"'You  will  perceive  by  the  London  journals,  the  Times,  the  Morning 
Post,  the  News,  the  Morning  Herald,  the  Spectator,  the  Examiner, 
Lloyd's,  &c.,  copies  of  which  I  send  you,  that  my  absence  from  the 
House  of  Lords,  at  the  opening  of  Parliament,  has  produced  quite  a 
sensation.  Indeed,  I  have  found  difficulty  in  preventing  this  incident 
from  becoming  a  subject  of  inquiry  and  remark  in  the  House  of  Com- 
mons. All  this  is  peculiarly  disagreeable  to  me,  and  has  arisen  entirely 
from  an  indiscreet  and  rather  offensive  remark  of  the  London  Times,  in 
the  account  which  that  journal  published  of  the  proceedings  at  the 
opening  of  Parliament.  But  for  this,  the  whole  matter  would  probably 
have  passed  away  quietly,  as  I  had  desired. 

"'Some  time  after  my  interview  with  Sir  Edward  Cust,  the  master  of 
ceremonies,  in  October'last  (whom  I  have  never  since  seen),  which  1  re- 
ported to  you  in  my  dispatch  No.  13,  of  the  28th  of  October,  1  determined, 
after  due  reflection,  neither  to  wear  gold  lace  nor  embroidery  at  court; 
and  I  did  not  hesitate  to  express  this  determination.  The  spirit  of  your 
circular,  as  well  as  my  own  sense  of  propriety,  brought  me  to  this  cchi- 
clusion.  1  did  not  deem  it  becoming  in  me,  as  the  representative  of  a 
Kei)ublic,  to  imitate  a  court  costume,  which  may  be  altogether  proper  in 
the  representatives  of  royalty.  A  minister  of  the  United  States  should, 
in  my  opinion,  wear  something  more  in  character  with  our  democratic 
institutions  than  a  coat  covered  with  embroidery  and  gold  lace.  Be- 
sides, after  all,  this  would  prove  to  be  but  a  feeble  atteuq)t '  to  ape  foreign 
fashions,'  because,  most  fortunately,  he  could  not  wear  the  orders  and 
stars  which  ornament  the  coats  of  the  diplomatists,  nor  could  he,  except 
in  rare  instances,  afford  the  diamon<ls,  unless  hired  for  the  occasion. 

" '  At  the  same  time,  entertainnig  a  most  sincere  respect  for  the  exalted 
character  of  the  Queen,  both  as  a  sovereign  and  a  lady,  1  expressed  a 
desire  to  appear  at  court  in  such  a  dress  as  1  might  suppose  would  be 

741 


§  1076.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

most  agreeable  to  herself,  without  departing  from  the  spirit  of  the  cir- 
cular. 

"  'It  was  then  suggested  to  me,  from  a  quarter  which  I  do  not  feel  at 
liberty  to  mention,  that  I  might  assume  the  civil  dress  worn  by  General 
Washington;  but  after  examining  Stuart's  portrait,  at  the  house  of  a 
friend,  1  came  to  the  conclusion  that  it  would  not  be  proper  for  me  to 
adopt  this  costume.  I  observed  fashions  had  so  changed  since  the  days 
of  Washington,  that  if  I  wore  to  put  on  his  dress,  and  appear  in  it  before 
the  chief  magistrate  of  my  own  country,  at  one  of  his  receptions,  I 
should  render  myself  a  subject  of  ridicule  for  life.  Besides,  it  would  be 
considered  presumption  in  me  to  affect  the  syle  of  dress  of  the  Father 
of  his  Country. 

"'It  was  in  this  unsettled  state  of  the  question,  and  before  I  had 
adopted  any  style  of  dress,  that  Parliament  was  opened.  If,  however, 
the  case  had  been  different,  and  I  had  anticipated  a  serious  question, 
prudential  reasons  would  have  prevented  me  from  bringing  it  to  issue 
at  the  door  of  the  House  of  Lords.  A  court  held  at  the  palace  would, 
for  many  reasons,  be  a  much  more  appropriate  place  for  such  a  purpose. 

*' '  Under  these  circumstances  I  received,  on  the  Sunday  morning  be- 
fore the  Tuesday  on  which  Parliament  met,  a  printed  circular  from  Sir 
Edward  Oust,  similar  to  that  which  I  have  no  doubt  was  addressed  to 
all  the  other  foreign  ministers,  inviting  me  to  attend  the  opening  of  the 
session.  The  following  is  extracted  from  this  circular:  '  No  one  can  be 
admitted  into  the  diploftatic  tribune  or  in  the  body  of  the  House  but 
in  full  court  dress.' 

"  'Now,  from  all  the  attending  circumstances,  I  do  not  feel  disposed  to 
yield  to  the  idea  that  any  disrespect  was  intended  by  this  circular  either 
to  my  country  or  myself.  Since  I  came  to  London  I  have  received  such 
attentions  from  high  official  personages  as  to  render  this  quite  improba- 
ble. What  may  be  the  final  result  of  the  question  I  cannot  clearly 
foresee,  but  I  do  not  anticipate  any  serious  difficulties.'" 

The  dispatcli  above  quoted  is  dated  Feb.  7,  1854,  aud  is  coutaiued  in  MSS.  Dis- 
patches, Gr.  Brit.,  Dept.  of  State. 

"  I  Still  anticipate  difficulty  about  my  costume,  but  should  this  occur 
it  will  probably  continue  throughout  my  mission.  It  is,  therefore,  no 
valid  reason  why  you  should  postpone  your  visit.  In  that  event  you 
must  be  pre])ared  to  share  my  fate.  So  far  as  regards  the  consequences 
to  myself  I  do  not  care  a  button  for  them,  but  it  would  mortify  me  very 
much  to  see  you  treated  differently  from  other  ladies  in  your  situation. 

"If  this  costume  affair  should  not  prove  an  impediment,  I  feel  that  I 
shall  get  along  very  smoothly  here.  The  fashionable  world,  with  the 
exception  of  the  high  officials,  are  all  out  of  London,  and  will  remain 
absent  until  the  last  of  February  or  the  first  of  JVIarch.  I  have  recently 
been  a  good  deal  in  the  society  of  those  who  are  now  here,  and  they  all 
seem  disposed  to  treat  me  very  kindly,  especially  the  ladies.  Their 
hours  annoy  me  very  much.  My  invitations  to  dinner  among  them  are 
all  for  a  quarter  before  eight,  which  means  about  half-past  that  liour. 
There  is  no  such  thing  as  social  visiting  here  of  an  evening.  This  is  all 
done  between  two  and  six  in  the  afternoon,  if  such  visits  may  be  called 
social.  I  asked  Lady  Palmerstcm  what  was  meant  by  the  word  'early,' 
placed  upon  her  card  of  invitation  for  an  evening  reception,  and  she 
informed  me  about  ten  o'clock.  The  habits  and  customs  and  business 
of  the  world  here  render  these  hours  necessary.     But  how  ridiculous  it 

742 


ClIA^  IV.]  COURt  DRESS.  [§  107?^. 

is  in  our  country,  where  no  such  necessity  exists  to  viohite  the  laws  of 
nature  in  regard  to  hours,  merely  to  follow  the  fashion  of  this  country." 

Mr.  Buchanan,  minister   at   Loudon,  to  Miss  Lane,  Dec.  9,  ISHIi.      2  Cnrtis' 
Buchanan,  lOt). 

"I  dined  on  Wednesday  last  with  the  Queen,  at  Buckingham  Palace. 
Both  she  and  Prince  Albert  were  remarkably  civil,  and  I  had  quite  a 
conversation  with  each  of  them  separately.  But  the  question  of  cos- 
tume still  remains,  and  from  this  I  anticipate  nothing  but  trouble  in 
several  directions.  I  was  invited  'in  frock-dress'  to  the  dinner,  and, 
of  course,  I  had  no  difiBculty.  To-morrow  will  be  the  first  lev6e  of  the 
Queen,  and  my  appearance  there  in  a  suit  of  plain  clothes  will,  I  have 
no  doubt,  produce  quite  a  sensation,  and  become  a  subject  of  gossip  for 
the  whole  court." 

Mr.  Buchanan  to  Miss  Lane,  Feb,  18,  1854,     2  Curtis'  Buchanan,  113. 

"  In  a  dispatch  to  Mr.  Marcy,  written  soon  after  his  appearance  at 
the  Queen's  levee,  Mr.  Buchanan  said:  'I  have  purposely  avoided  to 
mention  the  names  of  those  with  whom  I  have  had  interviews  on  this 
subject,  lest  it  might  expose  them  to  censorious  remarks  hereafter,  but 
having  mentioned  that  of  Sir  Edward  Cust,  the  master  of  ceremonies, 
in  my  dispatch  No.  13,  of  the  28th  October  last,  it  is  but  an  act  of  sim- 
ple justice  to  state  that  at  the  court  on  Wednesday  last  his  attentions 
to  me  were  of  the  kindest  and  most  marked  character,  and  have  placed 
me  under  many  obligations.  In  the  matter  of  the  sword,  I  yielded 
without  reluctance  to  the  earnest  suggestion  of  a  higli  ofticial  charac- 
ter, who  said  that  a  sword  at  all  the  courts  of  the  world  was  consid- 
ered merely  as  the  mark  of  a  gentleman,  and  although  he  did  not  men- 
tion the  Queen's  name,  yet  it  was  evident  from  the  whole  conversation 
that  this  was  desired  as  a  token  of  respect  for  Her  Majesty.  He  had 
on  a  former  occasion  expressed  the  hope  that  I  would  wear  something 
indicating  my  official  position,  and  not  appear  at  courr,  to  employ  his 
own  language,  in  the  dress  I  wore  upon  the  street.  I  told  him  promptly 
that  I  should  comply  with  his  suggestion,  and  that  in  wearing  a  sword 
at  court  as  an  evidence  of  the  very  high  regard  which  1  felt  for  Her 
Majesty,  I  should  do  nothing  inconsistent  with  my  own  character  as  an 
American  citizen  or  that  of  my  country.  I  might  have  added  that  as 
'  the  simj)le  dress  of  an  American  citizen'  is  exactly'  that  of  the  upper 
court  servants,  it  was  my  purpose  from  the  beginning  to  wear  some- 
thing which  would  distinguish  me  from  them.  At  the  first  1  had 
thought  of  United  States  l)uttons,  but  a  plain  dress  sword  has  a  more 
manly  and  less  gaudy  appearance.  I  hope  I  am  now  done  with  this 
subject  forever.' " 

2  Curtis'  Buchanan,  115, 

The  dispatch  above  quoted  is  in  MSS.  Dispatches,  Gr,  Brit.,  under  date  of  Feb. 
24,  1854. 

"The  dress  question,  after  much  difficulty,  has  been  finally  and  satis- 
factorily settled.  I  appeared  at  the  levee  on  Wednes<lay  last,  in  just 
such  a  dress  as  I  have  worn  at  the  President's  one  hundred  times.  A 
black  coat,  white  waistcoat  and  cravat,  and  black  ]iantaloons,  and  dress 
boots,  with  the  addition  of  a  very  plain  black-handled  and  black-hilted 
dress  sword.  This  to  gratify  those  who  have  yielded  so  much,  and  to 
distinguish  me  from  tlie  upper  court  servants.  I  knew  that  I  would 
be  received  in  any  dress  I  might  wear,  but  could  not  have  anticipated 

743 


§  1076.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

that  I  should  be  received  in  so  kind  and  distinguished  a  manner. 
Having  yielded,  they  did  not  do  things  by  halves.  As  I  approached 
the  Queen,  an  arch  but  benevolent  smile  lit  up  her  countenance;  as 
much  as  to  say,  you  are  the  first  man  who  ever  appeared  before  me  at 
court  in  such  a  dress.  I  confess  that  I  never  felt  more  proud  of  being 
an  American  than  when  I  stood  in  that  brilliant  circle  'in  the  simple 
dress  of  an  American  citizen.'  I  have  no  doubt  the  circular  is  popular 
with  a  majority  of  the  people  of  England,  Indeed,  many  of  the  most 
distinguished  members  of  Parliament  have  never  been  at  court,  because 
they  would  not  wear  the  prescribed  costume." 

Mr.  Buchanan  to  Miss  Lane,  Feb.  24,  1854 ;  2  Curtis'  Buchanan,  114. 

The  doffing  his  uniform  in  court  receptions  by  Mr.  Sanford,  secretary 
of  the  legation  at  Paris,  in  1853,  was  approved  by  the  Secretary  of 
State.  Mr.  Mason,  the  minister  at  Paris,  continued  to  wear  "a  court" 
dress,  and  this  was  left  to  his  discretion  by  the  Secretary. 

Mr.  Marcy,  Sec.  of  State,   to  Mr.  Sanford,  Feb.  18,  1854 ;  to  Mr.  Mason,  Feb. 
20,  1854.     MSS.  Inst.,  France. 

"The  'contretemps'  experienced  by  me  at  the  levee,  yesterday,  is  in- 
accurately stated  in  the  Times  of  to-day.  *  *  •  I  will  briefly' tell  you 
the  facts  without  a  comment.  I  took  with  me  to  the  palace  three  Ameri- 
can gentlemen.  One  of  these  is  an  eminent  professor  of  civil  and  mili- 
tary engineering  in  our  Military  Academy  at  West  Point,  and  has  the 
assimilated  rank  of  major  in  the  Army.  He  wore  his  official  costume,  a 
blue  dress  coat,  with  buttons  of  the  Engineer  Corps,  blue  pantaloons, 
white  vest,  black  stock,  and  the  common  hat.  It  was  objected,  in  a  man- 
ner exceedingly  kind  and  courteous,  that  he  wore  a  black  cravat,  had 
no  chapeau,  and  no  sword,  and  could  not  thus  pass  the  Queen.  1  tried 
once,  twice,  or  thrice,  to  surmount  the  difficulty  by  adverting  to  the 
official  character  of  his  dress,  but  the  rule  was  express,  and  there  was 
no  discretion  to  relax  it.  Pained  at  the  position  in  which  my  estima- 
ble countryman  was  placed,  among  strangers,  and  in  a  place  to  which 
he  was  entirely  unaccustomed,  I  unhesitatingly  offered  to  go  home  with 
him,  and  in  this  suggestion  his  comj>anions  joined.  We  retired.  It  was 
impossible  to  do  less,  and  we  did  no  more." 

Mr.  Dallas  to  M'.  M.,  London,  June  26,  1856 ;  1  Dallas's  Letters,  53. 

On  this  scene  some  characteristic  comments  are  given  by  Lord  Malmes- 
bury,  British  secretary  for  foreign  affairs  in  Lord  Derby's  administra- 
tion, in  his  Memoirs,  under  date  of  June  26,  June  28,  1856. 

2  Memoirs  of  an  ex-Minister,  48. 

Congress  having  by  resolution  taken  from  the  Secretary  of  State  the 
discretion  reposed  in  him  as  to  prescribing  the  costumes  of  those  en- 
gaged in  the  service  of  the  Dei^artment,  the  discretion  "  to  select  his  own 
costume"  is  left  to  the  gentlemen  so  employed. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jay,  July  13,  1869.      MSS.  Inst.  Austria.     See 
Senate  Ex.  Doc.  31,  36th  Cong.,  Ist  sess. 

"  The  diplomatic  officials  of  nearly  all  countries  wear  a  uniform  gen- 
erally consisting  of  a  coat  more  or  less  richly  embroidered  with  gold,  a 
cocked  hat,  and  sword.  By  a  resolution  of  Congress  passed  in  1867  the 
diplomatic  officials  of  the  United  States  are  forbidden  to  wear  'anyuni- 

744 


CHAP.  iV.]  COURT  DRESS.  [§  l07/>. 

loiin  or  official  costume  not  previously  authorized  by  ConffresK ; '  and 
altlioujili  the  wording  of  the  resolution  is  anil)ij;uous,  an<i  iiii^ht  be 
held  to  prevent  a  minister's  wgai  inj,^  any  clotlies  at  all,  he  a])i)ears  in 
ordinal y  eveuinji'  dress,  unless,  having'  been  a  military  or  naval  officer, 
he  wear  the  nnitorm  i)iescribed  for  his  rank.  The  history  of  this  res- 
olution is  somev,  hat  curious.  At  the  beginning  of  our  Government  the 
costume  worn  by  men  in  society  admitted  of  much  greater  variety  than 
at  present  in  color,  cut  and  ornament,  and  therefore  there  was  no  special 
distinction,  excei)t  in  point  of  richness,  between  dress  worn  at  court  and 
on  ordinary  occasions.  AVhen  our  mission  went  to  Ghent,  in  1814,  for 
the  conclusion  of  the  treaty  with  Great  Britain,  a  change  had  come 
over  Eurojjean  usages;  and  it  was  found  advisable  to  adopt  some  uni- 
Corm  to  mark  the  rank  of  the  members  of  the  mission.  They  agreed  to 
wear  a  blue  coat,  slightly  embroidered  with  gold,  with  white  breeches, 
white  silk  stockings,  and  gold  knee  buckles  and  shoe  buckles,  a  sword, 
and  a  sjiiall  cocked  hat  with  a  black  cockade.  For  grand  occasions, 
this  uniform  was  made  somewhat  richer.  lu  1823,  Mr.  John  Quincy 
Adams,  then  Secretary  of  State,  wrote  to  our  ministers  abroa'd  recom- 
mending the  use  of  the  uniform  worn  by  the  mission  of  Ghent,  send- 
ing a  fornml  description  of  it  as  well  as  an  engraved  plate.  During  the 
administration  of  General  Jackson  in  1829,  this  uniform  was  changed. 
It  was  made  simi)ler  and  cheaper,  consisting  of  a  black  coat  with  a  gold 
star  on  each  side  of  the  collar,  black  or  white  knee  breeches,  a  three- 
cornered  chapeau  bras,  with  a  black  cockade  and  a  gold  eagle,  and  a  steel- 
mounted  sword  with  a  white  scabbard.  This  dress  was  not  prescribed 
by  the  President,  but  was  suggested  as  an  appropriate  and  convenient 
uniform  dress  for  the  diplomatic  agents  of  the  United  States.  It  is  said 
that  not  all  ministers  coufonued  to  this  recommendation,  and  that  some 
of  theni  appeared  in  more  brilliant  uniforms  suited  to  their  respective 
tastes.  9  Some  suggestions  were  made  on  this  subject  to  the  Department 
of  State ;  and  Mr.  Marcy,  on  June  1,  1853,  issued  a  circular  withdraw- 
ing all  previous  instructions,  and  recommending  the  appearance  at  court 
of  our  ministers  in  the  simple  dress  of  an  American  citizen  '  whenever 
it  could  be  done  without  detriment  to  the  public  interest.'  Mr.  Marcy 
cited  the  example  of  Dr.  Franklin,  who  had  appeared  in  the  French 
court  in  very  simple  dress;*  but  it  is  now  well  known  that  this  was 
not  owing  to  the  love  of  simplicity  on  the  part  of  Franklin,  but  merely 
that  on  a  certain  occasion  his  presence  was  so  much  desired  at  court, 
when  he  had  no  clothes  in  which  he  considered  it  tit  to  appear,  that 
he  was  requested  to  come  in  whatever  he  happened  to  be  wearing  at 
the  moment.  In  compliance  with  these  instructions,  several  of  our 
ministers  attempted  to  go  to  court  in  plain  evening  dress.  To  Mr.  Bel 
mont,  at  The  Hague,  no  objection  was  made,  although  it  was  evidently 
preferred  that  he  should  comply  with  the  usages  of  the  place.  Mv. 
Mason  presented  his  credentials  to  the  Emperor  Nai)oleon  in  civil  dress, 
but  subsequently  adopted  a  simple  uniform,  which  he  always  wore  on 
ceremonial  occasions.  At  Stockholm,  while  the  King  expressed  his 
perfect  willingness  personally,  to  receive  Mr.  Schroeder  in  plain  dress, 
he  said,  'the  etiquette  of  my  house  is  subject  to  regulations  which  can- 
not be  waived  for  one  in  preterence  to  others.  In  audiences  of  business 
I  will  receive  him  in  any  dress  his  Gov^ernment  may  i)rescribe ;  but  in 
the  society  of  my  family  and  on  occasions  of  court  no  one  can  be  re- 
ceived but  in  court  dress,  in  conformity  with  the  established  customs.' 

*Thi8,  however  was  Quaker  full  dress,  beiug  court  dress  in  the  times  of  Charles  II. 

745 


^  1075.]  DIPLOMATIC   AGfeNTS.  [cflAP.  IV. 

Mr.  Vroom,  at  Berlin,  was  told  that  '  His  Majesty  would  not  consider 
an  appearance  before  bini  without  costume  as  respectful.'  Mr.  Buch- 
anan was  excluded  from  the  diplomatic  tribune  at  the  opening  of  Par- 
liament because  he  refused  to  wear  court  dress ;  and  when  subsequently 
he  insisted  on  wearing-  civilian  dress,  Sir  Edward  Cust  told  him  '  that 
he  hoped  he  would  not  ai)pear  at  court  in  the  dress  he  wore  upon  the 
street,  but  would  wear  something  indicating  his  oflBcial  position.'  He 
therefore  api)eared  at  court  in  ordinary  evening  dress,  with  a  plain 
black  sword  and  a  cocked  hat.  Mr.  H.  S.  Snnford,  who  had  been  act- 
ing as  chargp  d'affaires  at  Paris  until  the  arrival  of  Mr.  Mason,  carried 
out  Mr.  Marcy's  instructions  literally,  and  adopted  an  evening  dress. 
When  Mr.  Mason,  as  has  just  been  mentioned,  returned  to  the  use  of 
unifVu-m,  Mr.  Sanford  complained  of  this  to  the  Department  of  State, 
and  offered  his  resignation.  His  conduct  in  the  matter  was  approved 
by  jNIr.  Marcy,  but  his  resignation  was  accepted.  Six  years  afterwards 
in  January,  1860,  when  Mr.  Faulkner  was  about  proceeding  to  Paris, 
Mr.  Sanford  wrote  to  General  Cass  referring  to  the  previous  correspond- 
ence, ridiculing  Mr.  Mason's  course,  and  asking  that  Mr.  Faulkner 
should  be  instructed  to  wear  civilian  dress.  Mr.  Sanford  in  this  let- 
ter confounded  two  things,  court  dress  and  diplomatic  uniform ;  for 
even  in  countries  where  court  dress  is  required,  there  is  a  diplomatic 
uniform  different  from  that  worn  by  other  oflicials ;  and  the  example  of 
the  Turkish  embassador,  brought  up  by  him,  was  by  no  means  to  the 
point.  Turkish  diplomats  always  wear  a  diplomatic  uniform,  and  by 
no  means  the  ordinary  Turkish  dress,  which  can  be  worn  in  the  presence 
of  the  Sultan.  In  compliance  with  a  resolution  of  the  Senate,  the  papers 
on  this  subject  were  jiriuted  shortly  afterward.  (Senate  Ex.  Doc.  31, 
36th  Cong.,  1st  sess.,  Apr.  1,  1860.)  Xo  further  action  was  taken  until 
March,  1867,  when,  by  the  joint  efforts  of  Senator  Sumner  and  General 
Banks,  the  resolution  in  question  was  forced  through  Congress.  *  *  * 
The  resolution,  in  point  of  fact,  does  not  accomplish  what  was  intended 
by  it — to  prevent  the  wearing  of  court  dress  in  London,  almost  the  only 
place  where  it  is  worn,  for  court  dress  is  neither  a  uniform  nor  an 
official  costume." 

Schuyler's  Am.  Diplom.,  139^. 

*'  Officers  of  the  several  grades  in  the  diplomatic  service  of  the  United 
States  are  hereby  instructed  to  conform  to  the  requirements  of  law  pro- 
hibiting them  from  wearing  any  uniform  or  official  costume  not  pre- 
viously authorized  by  Congress. 

"  The  statute  authorizes  all  officers  who  have  served  during  the  rebell- 
ion as  volunteers  in  the  armies  of  the  United  States,  and  who  have 
been,  or  may  hereafter  be,  honorably  mustered  out  of  the  volunteer 
service,  to  bear  the  official  title,  and,  upon  occasions  of  ceremony,  to 
wear  the  unif(^rm  of  the  highest  grade  they  have  held  by  li^evet  or 
other  commissions  in  the  volunteer  service." 

Printed  Pers.  Inst.,  Dip.  Agents,  1885. 

"I  observe  that,  in  your  dispatch,  you  refer  to  the  exceptional  posi- 
tion of  the  minister  and  secretary  of  legation  of  the  United  States, 
whose  plain  evening  costume,  amidst  a  brilliant  display  of  uniforms  of 
every  class,  '  succeeded,'  as  you  say,  '  in  securing  the  embarrassment 
of  digito  monstrari  conspicuousness.'  *  *  * 
746 


CHAP.  IV.]  EXPENSES.  [§  107c. 

"  The  absence  of  civil  distinctions  at  home  forbids  their  adoption 
abroad  ;  and  even  were  the  diplomatic  organization  a  distinct  branch 
of  service,  with  appointment  foi-  life  or  good  behavior  and  i)ron)otion 
by  seniority,  the  fitness  of  adoi)ting  for  its  members  a  distinctive  uni- 
form is  questionable.  The  analogy  of  the  military  and  naval  services 
is  not  wholly  in  point,  for  with  them  uniform  is  necessary  to  a  proper 
disciplinary  organization,  and  visible  distinctions  of  oUicial  rank  arc 
essential. 

"Uniforms  are  of  two  classes — those  denoting  relativ'e  rank  and  au- 
thority in  an  organized  disciplined  service,  and  those  wliich,  like  tlie 
robes  of  knightly  orders  and  the  like,  mark  class  or  titular  privilege. 
Neither  of  these  is  applicable,  in  theory,  to  those  citizens  who  may  be 
chosen  to  represent  abroad  the  sovereignty  of  the  Kepublic.  ♦  *  * 
The  dignity  of  the  representative  oflice  should  be  deemed  jper  se  above 
all  distinctions  in  the  way  of  personal  apparel. 

"  I  have  been  told  of  a  pertinent  illustration  of  this  in  Spain,  some 
years  ago,  on  the  occasion  of  the  first  official  reception  of  the  late  King. 
All  the  dignitaries  and  officers  of  the  realm,  to  the  number  of  some 
three  thousand,  were  in  attendance,  and  foreign  representatives  like- 
wise assisted.  Uniform  being  de  rifjtur,  every  one  wore  that  of  the 
highest  official  or  titular  rank  to  which  he  was  entitled.  In  the  whole 
assemblage  four  men  appeared  in  evening  dress — the  president  of  the 
Senate,  the  president  of  the  Chamber  of  Deputies,  and  the  minister 
and  secretary  of  legation  of  the  United  States.  They  were  indeed  con- 
spicuous, but  necessarily  so.  The  Spanish  legislative  body  wears  as 
such  no  uniform.  Either  of  the  presiding  officers  might  have  worn,  as 
a  private  individual,  any  one  of  the  uniforms  belonging  to  the  rank  held 
in  other  ofiicial  stations,  as  ambassador,  privy  councillor,  or  grand 
cross;  but  such  uniform  would  have  been  beneath  the  dignity  of  the 
representative  function  with  which  they  stood  invested. 

"  Upon  reflection,  and  in  the  light  of  this  example,  it  may  be  ques- 
tioned whether  the  representative  quality  of  an  envoy,  the  highest 
known  in  the  coequal  intercourse  of  nations,  is  not  rather  diminished 
than  enhanced  by  wearing,  as  is  done  in  some  cases  under  statutory 
authority,  the  uniform  of  past  or  iiresent  military  rank." 

Mr,  Bayard,  Sec.  of  State,  to  Mr.  Curry,  Jau.  15, 1886.     MSS.  lust.,  Spain. 

(4)  Expenses. 

§  107c. 

"Congress  has  mortified  me  a  little  by  cutting  off  one-fifth  of  my 
salary,  at  a  time  when  the  increase  of  my  family  ratlier  recpiired  an 
increase  of  it.  The  consequence  of  it  must  be  that  I  must  entertain 
less  company,  whereas  the  interest  of  the  United  States  requires  that 
I  should  entertain  more.  There  is  not  a  man  in  the  world  less  inclined 
to  pomp  or  to  entertainments  than  myself,  and  to  me  personally  it  is  a 

747 


§  107c.]  DIPLOMATIC    AGENTS.  [CIIAP.  IV, 

relief  to  be  excused  from  both.  But  If  I  know  anythiug  in  tlie  world, 
I  know  that  this  measure  is  not  for  the  public  good,  nor  a  measure  of 
economy.  If  there  is  anybody  iu  America  who  understands  economy 
better  than  the  Dutch  nation,  I  know  nothing  of  either,  and  their  policy 
is  always,  upon  occasions  of  consequence,  to  appoint  ambassadors, 
and  even  ambassadors  extraordinary,  as  they  did  at  the  late  ])eace, 
my  friend  Brautzen,  with  seventy-live  thousand  guilders  to  furnish  his 
house,  and  his  table,  and  seventy-five  thousand  guilders  a  year  to  spend 
in  it.  In  short,  that  nation  which  places  its  own  ambassadors  at  the  tail 
of  the  whole  creation,  cannot  itself  expect  to  be  soou  at  the  head.  If  this 
policy  does  not  expose  our  country  to  a  million  insults,  and  at  last  com- 
pel her  by  war  and  bloodshed  to  consult  better  her  own  honor,  I  am 
much  mistaken.  How  are  we  to  do?  We  are  to  negotiate  with  all  the 
ambassadors  here,  that  is,  we  are  to  be  invited  to  dine  to-morrow  at  a 
table  with  three  thousaud  pounds  sterling  upon  it,  and  next  day  we  are 
to  return  this  civility  by  inviting  the  same  company  to  dine  with  us  upon 
earthenware !  I  am  well  aware  of  the  motives  to  this  conduct,  which 
are  virtuous  and  laudable,  but  we  shall  find  that  we  cannot  keep  up 
our  reputation  in  Europe  by  such  means,  where  there  is  no  idea  of 
the  motives  and  principles  of  it,  and  where  extreme  parsimony  is  not 
economy.  We  have  never  been  allowed  anything  to  furnish  our  houses 
or  tables,  and  my  double  capacities  have  obliged  me  to  furnish  myself, 
both  in  Holland  and  France,  which,  besides  exposing  me  to  be  unmerci- 
fully robbed  and  plundered  in  my  absence,  has  pinched  and  straitened 
me  confoundedly.  However,  I  am  the  best  man  in  the  world  to  bear  it, 
and  so  be  it." 

Mr.  J.  Adauis  to  Mr.  Warreu,  Aug.  27,  1784.  See  3  Johu  Adams'  Works,  139, 
161 ;  9  John  Adams'  Works,  525,  527. 

The  report  of  Mr.  Jefferson,  as  Sec.  of  State,  on  Nov.  3,  1792,  in  respect  to  ex- 
penses of  foreign  intercourse,  is  given  in  1  Am.  State  Pap.,  (For.  Eel.,)  137. 

As  to  the  inadequacy  of  the  salary  allovred  iriinisters  in  Paris  for  their  support, 
see  Mr.  Gallatin  to  Mr.  Madison,  Nov.  23,  1815.;  1  Gallatin's  Writings,  659. 

"  Is  it  necessary  that  the  United  States  should  be  represented  with 
foreign  powers?  This  has  long  ceased  to  be  a  question.  Shall  they 
maintain  a  proper  station  there — not  assuming,  but  dignified,  such  as 
the  general  expectation  and  common  opinion  of  mankind  have  given 
them  ?  That  has  never  been  a  question.  The  character  of  the  country, 
if  not  its  rank,  is  in  some  degree  affected  by  that  which  is  maintained 
by  its  ministers  abroad.  Their  utility  in  all  the  great  objects  of  their 
mission  is  essentially  dependent  on  it.  A  minister  can  be  useful  only 
,by  filling  his  place  with  credit  in  the  diplomatic  corps,  and  in  the  cor- 
responding circle  of  society  in  the  country  in  which  he  resides,  which  is 
the  best  in  every  country.  By  taking  the  proper  ground,  if  he  pos- 
sesses the  necessary  qualifications  and  is  furnished  with  adequate 
means,  he  will  become  acquainted  with  all  that  passes,  and  from  the 
highest  and  most  authentic  sources.  Inspiring  confidence  by  reposing 
it  in  those  who  deserve  it,  and  by  an  honorable  deportment  in  other 
respects,  he  will  have  much  influence,  especially  in  what  relates  to  his 
own  country.  Deprive  him  of  the  necessary  means  to  sustaiu  this 
ground,  separate  him  from  the  circle  to  which  he  belongs,  and  he  is 

748 


CHAP.  IV.J  EXPriNSES.  [§  lOic. 

red  need  to  a  cipher.    He  may  collect  iutelli^'ence  from  adventurers  and 
si)ies,  but  it  will  be  of  comparatively  little  value,  and  in  other  respects 

lie  had  as  well  not  be  ther<i." 

Mr.  Monroe,  Sec.  of  Slate,  to  Mr.  Lowndes,  chairiiiau  of  Corniaittee  on  Ways 
and  Means,  Apr.  5,  1816.     Quoted  in  Schuyler's  American  Diplomacy,  151. 

"  The  late  royal  marriages,  and  the  other  that  is  h\  i)rospect,  make 
distressing;-  drafts  ujionthe  pockets  of  all  who  are  obliged  to  go  through 
the  ceremonies  to  which  they  give  rise.  To-morrow  the  Queen  holds  a 
drawing  room,  and  we  have  a  summons  from  the  chamberlain  to  attend 
a  party  at  Carleton  House  on  Monday.  1  Avould  as  soon  have  been 
served  with  a  summons  in  debt  for  fifty  pounds  sterling.  Ladies  who 
have  been  at  court  and  know  what  must  be  the  expense  o£  a  wardrobe 
will  be  the  persons  to  understand  this  remark." 

Mr.  Kusli,  minister  at  London,  to  Mr.  Monroe,  President,  unofficial,  Apr.  22, 
1818.     Monioe  Papers,  Dept.  of  State. 

The  opinion  of  Mr.  Wirt,  Attorney-General,  Oct.  1,  1821,  as  to  allowance  of  sala- 
ries and  outfits  to  ministers,  is  given  in  Senate  Doc.  411,  special  sess.,  1821. 
5  Am.  St.  Pap.  (For.  Eel.),  755.  (This  opinion  is  not  given  in  the  series  of 
opinions  of  Attorneys-General. ) 

Mr.  Monroe,  when  succeeding  Mr.  Morris  as  minister  at  Paris,  was, 
in  consequence  of  the  hospitality  required  of  him,  "  encouraged  not  only 
to  spend  all  his  salary  in  his  oflQce,  but  much  more,  and  had  he  been 
in  a  condition  to  enlarge  his  expenditures  still  beyond,  his  country 
would  have  i)rofited  by  the  sacrifice." 

Mr.  Vaughan,  Memorandum  of  1826  in  Monroe  MSS. 

As  a  preliminary  principle,  it  seems  clear  that  the  representatives 
of  a  great  nation  like  the  American  ought  to  appear  in  some  measure 
as  the  representatives  of  other  great  nations  appear ;  otherwise  the  loss 
of  influence  produced  by  refusing  to  submit  to  small  expenses  may  have 
to  be  made  by  other  expenses.  *  *  *  Whoever  is  fit  to  represent  a 
nation  at  a  great  court  must  be  trusted  to  act  on  these  extraordinary 
occasions  at  his  own  discretion,  subject  to  the  approbation  of  his  supe- 
riors at  home. 

Ibid. 

"The  general  superintendence  of  our  foreign  relations,  which,  under 
your  direction,  is  vested  in  the  head  of  the  State  Department,  would 
seem  to  require  that  he  should,  at  proper  periods,  briug  to  your  view 
the  state  of  our  diplomatic  intercourse  with  other  nations,  and  suggest 
the  measures  which  occur  to  him  for  making  its  agency  more  eftectual. 

"That  agency  employed  (necessarily,  perhaps)  by  European  powers 
in  fcwming  or  defeating  political  combinations,  and  in  a  vigilant  obser- 
vation of  each  other's  plans  and  oi)erations,  with  us  has  diflereut  objects. 
Kemote  from  these  scenes  of  political  jealousy  and  strife,  strong  in  our 
own  resources,  and  giving  no  umbrage  by  intermeddling  in  the  affairs 
of  other  nations,  we  want  no  alliances  for  our  defense,  nor  do  we  fear 
that  any  will  be  formed  which  it  is  our  interest  to  defeat,  and  thus  have 
no  motive  for  entering  the  vortex  of  European  diplomacy.     Ours  has  a 

749 


§  1076-.]  DII'LOMATIC    AGENTS.  [CIIAP.  IV. 

distiuct  cliiiiacter.  Its  only  objects  iiic  the  inescivatioii  oi"  ])eace,  tbe 
extension  to  other  i)o\vei's  of  a  mutually  beneficial  commerce,  the  pro- 
motion of  a  friendly  interchange  of  good  oftices,  and  the  establishment, 
by  treaty,  of  i)rincii)les  which  mayrcDder  wars  less  frequent  aud  disarm 
them  wheu  they  must  occur  of  many  unuecessarj'^  horrors,  iuconsisteut 
with  the  mauners  iiud  feelings  of  the  age  in  which  we  live. 

"Conflued,  however,  to  these  objects,  this  branch  of  the  Executive 
functions  of  our  Gx)vernment  would  seem  to  be  sufficiently  important  5 
but  all  who  have  observed  its  operations  must  be  convinced  that  its 
utility  is  not  sufficiently  appreciated  and  that  it  is  even  regarded  with 
unreasonable  jealousy.  Ministers  are  considered  as  favorites,  selected 
to  enjoy  the  pleasures  of  foreign  travel  at  the  expense  of  the  people, 
their  places  as  sinecures,  and  their  residence  abroad  as  a  continued 
scene  of  luxurious  enjoyment. 

"Their  exertions,  their  embarrassments,  their  laborious  intercourse 
witli  the  Governments  to  which  they  are  sent,  their  anxious  care  to 
avoid  anything  that  might,  on  the  one  hand,  give  just  cause  of  offense, 
or  to  neglect  or  abandon  the  rights  of  their  country  or  its  citizens,  on 
the  other,  are  all  unknown  at  home.  Even  the  merit  of  their  corre- 
spondence, from  which,  at  least,  the  reward  of  honor  might  be  derived, 
is  hid  in  the  archives  of  the  Department  and  rarely  sees  the  light,  and 
except  in  the  instances  of  a  successful  negotiation  for  claims,  a  minister 
returns  to  his  country,  after  years  of  the  most  laborious  exertion  of  the 
highest  talent,  with  an  injured,  if  not  a  broken,  fortune,  his  countrymen 
ignorant  of  his  exertions,  and  undervaluing*  them  perhaps  if  known. 
On  the  whole,  there  is  scarcely  an  office  of  which  the  duties,  properly 
performed,  are  more  arduous,  more  respouvsible,  aud  less  fairly  appre- 
ciated than  that  of  a  minister  to  a  country  with  which  we  have  imi)ortant 
commercial  relations.  Yet  there  is  some  reason  to  believe  that  appoint- 
ments to  themare  eagerly  sought  from  the  same  false  ideas  of  the  nature 
of  the  employment.  To  these  mistaken  ideas,  more  or  less  prevalent, 
maybe  traced  many  of  the  evils  which  hare  operated,  and  still  operate, 
injuriously  upon  the  interests  and  reputation  of  the  country.     *     *     * 

"A  minister  to  a  foreign  power,  whatever  may  be  his  grade,  is  the 
accredited  agent  of  his  country.  If  he  is  forced,  from  the  inadequate 
compensation  that  is  allowed  him,  to  live  in  a  manner  that  will  not 
allow  him  to  associate  on  an  equal  footing  with  others  of  the  same  grade, 
he  is  deprived  of  many  of  the  advantages  which  social  intercourse 
affords  to  perform  essential  duties,  and  to  gain  important  informj^ion 
which  can  only  be  obtained  by  mixing  in  the  first  circles.  It  is  not 
expected,  nor  should  I  recommend,  that  his  allowance  should  be  such 
as  to  enable  him  to  vie  in  expense  of  living  with  the  ministers  of  mon- 
archs  who  allow  extravagant  salaries,  and  who  themselves  have  large 
fortunes  which  they  expend  in  addition  to  their  official  allowance,  but 
he  ought  to  have  the  means  of  returning  civilities  which  he  receives — of 
•      750 


CHAP.  IV.]  EXPENSES.  [§  107<?. 

giving  to  bis  countrymcu  a  pliiin  hospitable  r(M;i'i)ti()ii  w  Imii  tlicv  visit 
the  place  of  his  residence — and,  above  all,  ho  (in^ht  to  lunc  an  allow- 
ance that  will  enable  him  to  meet  the  expenses  absolutely  iiecessaiy  lor 
the  due  performance  of  his  oliicial  duties  without  trenching  on  his  sal- 
ary so  much  as  to  render  it  entirely  incompetent  to  his  necessary  and 
decent  support.     *     *     *  . 

"The  usual  answer  to  these  representations  is  that,  notwithstanding 
all  these  inconveniences,  candidates  are  alwa.ys  found,  eagerly  seeking 
these  appointments.  But  it  must  be  remarked  that  these  candidates 
are  of  two  kinds:  First,  men  of  wealth  who  are  willing  to  purchase 
the  honor  of  the  station  at  the  expense  of  their  private  fortunes.  But 
although  these  Are  not  always  the  fittest  in  other  respects  for  the  place, 
they  are  sometimes  selected,  and  their  appointment  is  popular,  because 
there  seems  to  be  no  objection  to  a  minister's  keeping  uj)  a  decent  ap- 
pearance, i)rovided  he  does  il  at  his  own  expense.  Secondly,  there  are 
others  who  seek  these  appointments,  because  they  make  false  calcula- 
tions on  the  consequences.  They  resolve  to  be  very  economical,  to  live 
within  their  income,  and  to  be  drawn  into  no  extravagance,  but  on  ar- 
riving at  their  place  of  destination  they  find  that  expenses  which  might 
with  prudence  have  been  avoided  here  are  inevitable  abroad.  Civili- 
ties are  received  which  must  be  returned ;  strangers  are  introduced 
who  must  be  entertained ;  their  countrymen  call  on  them  and  must  be 
treated  hospitably ;  in  short,  they  find  themselves  obliged  to  live  as 
others  do,  or  to  forego  all  the  advantages  which  social  intercourse 
would  give  them  in  the  business  of  their  mission.  The  consequence  is 
that  all  our  ministers  return  with  impaired  fortunes,  however  firm  their 
resolutions  have  been  to  avoid  unnecessary  expense.  It  is  possible 
there  may  be  exceptions,  but  they  are  certainly  very  rare.  If,  then, 
none  of  the  ministers  we  have  sent  abroad,  however  prudent,  have  been 
able  to  live  on  the  salaries  that  are  allowed  them,  the  conclusion  is 
inevitable  that  the  salaries  ought  to  be  increased  or  the  ministers 
should  be  recalled.  If  the  mission  is  useful  it  ought  to  be  supported 
at  the  public,  not  at  private,  expense,  and  the  representatives  of  a  great 
nation  ought  not  to  be  obliged  to  employ,  in  devising  parsimonious  ex- 
pedients for  their  support,  that  time  and  those  talents  which  ought  to 
be  occupied  in  the  service  of  their  country." 

Keport  of  Mr.  Liviogston,   Sec.  of  State,  to  President  Jackson,  Jan.  31,  1K53. 
H.  R.  Ex.  Doc.  94,  22d  Cong.,  2cl  boss. 

" I*  have,  since  my  arrival,  been  living  inconveniently  in  an  hotel, 
taking  time  to  get*  my  establishment  on  a  footing  of  economy  united 
with  the  necessary  respectability  of  my  station  ;  and  I  liiid  that  tlie  lour 
articles  of  house-rent,  coach-hire,  servants,  and  fuel  will  take  about 
seven  thousand  dolTars,  leaving  for  all  my  other  exi)enses,  in  this 
expensive  capital,  two  thousand  dollars.  I  make  this  statement,  not 
because  I  have  any  interest  in  it,  for  I  am  not  rich  enough  to  remain 
here  until  some  remedy  be  applied  to  the  evil,  but  for  the  honor  of  the 

751 


§  108.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

country,  and  to  enable  it  to  avail  itself  of  the  services  of  other  than  men  of 
large  fortunes^ 

Mr.  Livingston,  minister  at  Paris,  to  the  Sec.  of  State, ,  1834.    Hunt's 

Life  of  Livingston,  414.     (This  does  not  apiiear  in  the  Department  records.) 

"  As  to  the  expense  incurred  for  court  mourning,  a  review  of  the  course 
purslied  by  the  Department  of  State  in 'regard  to  contingent  allow- 
ances shows  that  none  was  ever  made  by  it,  under  that  head,  with  the 
single  exception  of  the  case  of  Mr.  McLane,  to  which  you  refer,  and 
which  you  are  already  informed  is  regarded  by  the  President  as  having 
been  made  without  sufficient  consideration.  The  President,  before 
whom  your  dispatch  has  been  laid,  desires  me  to  state  to  you  that  he 
sees  no  cause  for  changing  the  decision  which  he  had,  with  delibera- 
tion, adopted  on  the  subject." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Stevenson,  Apr.  1. 1840.     MSS.  Inst.,  Gr.  Brit. 
Mr.  Webster's  report  of  July  2, 1852,  as  to  the  expediency  of  adopting  a  grad- 
uated scale  of  diplomatic  salaries,  is  given  in   Senate  Ex.  Doc.  No.  93, 32d 
Cong.,  1st  sess. 

"  Now,  ill  order  to  preserve  good  relations  with  a  country,  it  is  not 
sufficient  simply  to  have  a  person  living  m  town  as  cheaply  as  he  can 
anbrd  to  exist,  because  the  social  position  of  your  representative  is  a 
very  important  element  in  his  power  to  be  useful.  In  regard  to  his 
intercourse  with  the  ministers  of  the  country,  great  facilities  and  great 
means  of  good  understanding  are  afforded  by  easy  social  intercourse, 
which  can  only  possibly  be  obtained  by  his  being  able  to  receive  them, 
as  well  as  also  being  received  by  them.  Again,  it  is  of  great  impor- 
tance that  your  embassador  should  be  in  habits  of  social  intercourse  with 
public  men  not  in  office;  that  be  shoidd  Lave  the  means  of  receiving 
them,  becoming  acquainted  with  their  views,  and  explaining  to  them 
the  views  and  i^olicy  of  his  own  country.  Therefore,  I  think  it  is  of 
great  importance  to  this  country  that  your  representative  should  be  in 
such  an  easy  position  with  regard  to  money  affairs  as  may  enable  him 
to  receive  hospitably  persons  of  all  kinds,  and  I  may  say  also  of 
different  nations." 

Lord  Palmerston,  testimony  before  committee  of  House  of  Commons,  quoted 
Senate  Ex.  Doc.  No.  93,  32d  Cong. ,  1st  sess.     Schuyler's  Am.  Diiilom.,  150. 

XXXII.   CONTINGENT  FUND  AND  SECRET  SERVICE. 

§108. 

"The  allowance  to  a  minister  resident  of  the  United  States  is  4,500 
dollars  a  year /or  all  his  personal  services  and  other  expenses^  a  year's  sal- 
ary for  his  outfit,  and  a  quarter's  salary  for  his  return.  It  is  understood 
that  the  perso7ial  services  and  other  expenses  here  meant  do  not  extend  to 
the  cost  of  gazettes  and  pamphlets  transmitted  to  the  Secretary  of 
State's  office,  to  translating  or  printing  necessary  papers,  postage,  cour- 
iers, and  necessary  aids  to  poor  American  sailors.  These  additional 
charges,  therefore,  may  be  inserted  in  your  accounts;  but  no  other  of 
752 


CHAP.  IV.]   CONTINGENT  FUND  AND  SECRET  SERVICE.     [§  108. 

any  description,  unless  where  they  are  expressly  directed  to  be  incurred. 
The  salarj^  of  j'our  new  grade  being  the  same  as  of  your  former  one,  and 
your  services  continued,  though  the  scene  of  them  is  changed,  there 
will  be  no  intermission  of  salary,  the  new  one  beginning  where  the 
former  ends,  and  ending  when  you  shall  receive  notice  of  your  permis- 
sion to  return.  For  the  same  reason  there  can  be  but  one  allowance  of 
outfit  and  return,  the  former  to  take  place  now,  the  hitter  only  on  your 
final  return." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Short,  Jan.  23,  1792.     MSS.  Inst.  Ministers. 

The  fund  for  foreign  intercourse  is  an  annual  fund  placed  at  the  dis- 
jjosal  of  the  President  to  defray  expenses;  and  he  is  limited  in  respect 
to  an  outfit  only  by  the  provision  that  it  shall  ncjt  exceed  a  year's  salary-. 
When  the  outfit  has  been  paid,  it  is  beyond  the  recall  of  the  President 
or  Congress. 

1  Op.,  545,  Wirt,  1822. 

The  President,  having  the  foreign-intercourse  fund  under  his  direc- 
tion, may  advance  to  a  minister  going  from  the  United  States  to  Chili 
such  part  of  his  salary  as  he  shall  deem  necessary  to  the  proper  fulfill- 
ment of  public  engagements. 

1  Op.,  620,  Wirt,  1823. 

The  President,  being  intrusted  with  the  subject  of  the  diplomatic 
intercourse  of  the  United  States  with  foreign  nations,  may,  in  his  dis- 
cretion, advance  money  to  a  minister  going  abroad.  (Act  1823,  3  Stat., 
723;  Eev.  Stat.,  §§  3648,  1740,  1743.) 

2  Op.,  204,  Berrien,  1829. 

The  expense  of  recasting  cannon,  &c.,  to  be  presented  to  the  Imaura 
of  Muscat,  in  return  for  presents  received,  may  be  defrayed  from  the 
a])propriation  for  the  contingent  expenses  of  foreign  intercourse. 
4  Op.,  358,  Mason,  1845. 

This  appropriation  is  placed  at  the  disposal  of  the  Executive,  who  is 
charged  with  the  care  and  management  of  all  our  foreign  relations. 
And,  as  it  has  been  the  practice  of  our  Government,  from  its  earliest 
history,  to  interchange  presents  with  the  semi-barbarous  nations  of  Asia 
and  Africa,  and  as  the  Executive  is  vested  with  a  discretion  respecting 
the  manner  in  which  friendly  relations  with  them  can  be  best  main- 
tained, it  follows  that,  if  he  shall  be  of  opinion  that  the  public  interes.ts 
will  be  promoted  by  tendering  a  present  in  return  for  one  received,  he 
may  legally  do  so,  and  cause  the  expense  thereof  to  be  defrayed  from 
the  funds  thus  placed  at  his  disposal. 

4  Op.,  358,  Mason,  1845. 

A  public  minister  who  was  at  home  at  the  time  of  his  recall,  and  who 
was  paid  his  salary  down  to  the  date  of  his  recall,  is  not  entitled,  in 

S.  Mis  102— VOL.  I 48  ^^-^ 


§  108.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

addition,  to  compeusatiou  for  such  further  time  as  would  be  necessarily 
spent  in  coming  home  from  the  seat  of  his  mission. 

9  Op.,  261,  Black,  1858. 

"  The  usual  annual  appropriation  '  for  the  contingent  expenses  of  in- 
tercourse between  the  United  States  and  foreign  nations'  has  been  dis- 
bursed since  the  date  of  the  act  of  May  1,  1810,  in  pursuance  of  its  pro- 
visions. By  the  third  section  of  that  act  it  is  provided  :  '  That  when  any 
sum  or  sumsof  money  shall  be  drawn  from  the  Treasury,  un<ler  any  law 
making  appropriation  for  the  contingent  expenses  of  intercourse  be- 
tween the  United  States  and  foreign  nations,  the  President  shall  be,  and 
he  is  hereby,  authorized  to  cause  the  same  to  be  duly  settled,  annually, 
with  the  accounting  officers  of  the  Treasury,  in  the  manner  following, 
that  is  to  say :  By  causing  the  same  to  be  accounted  for,  specially,  in 
all  instances  wherein  the  expenditure  thereof  may.,  in  his  judgment,  be 
made  public,  and  by  making  a  certificate  of  the  amount  of  such  expen- 
ditures as  he  may  think  it  advisable  not  to  specify;  and  every  such 
certificate  shall  be  deemed  a  sufficient  voucher  for  the  sum  or  sums 
therein  expressed  to  have  been  expended.' 

"  Two  distinct  classes  of  expenditure  are  authorized  by  this  law ;  the 
one  of  a  public,  and  the  other  of  a  private  and  confidential  character. 
The  President  in  office  at  the  time  of  the  expenditure  is  made  by  the 
law  the  sole  judge  whether  it  shall  be  public  or  private.  Such  sums 
are  to  be  'accounted  for  specially  in  all  instances  wherein  the  expendi- 
ture thereof  may,  in  his  judgment,  be  ^made  public'  All  expenditures 
'accounted  for  specially'  are  settled  at  the  Treasury,  upon  vouchers, 
and  not  on  'President's  certificates,'  and,  like  all  other  public  accounts, 
are  subject  to  be  called  for  by  Congress,  and  are  open  to  public  exami- 
nation. Had  information  as  respects  this  class  of  expenditures  been 
called  for  by  the  resolution  of  the  House,  it  would  have  been  promptly 
communicated. 

"Congress,  foreseeing  that  it  might  become  necessary  and  proper  to 
apply  portions  of  this  fund  for  objects,  the  original  accounts  and  vouch- 
ers for  which  could  not  be  '  made  public '  without  injury  to  the  public 
interests,  authorized  the  President,  instead  of  such  accounts  and  vouch- 
ers, to  make  a  certificate  of  the  amount  'of  such  expenditures  as  he  may 
think  it  advisable  not  to  specify,'  and  have  provided  that  '  every  such 
certificate  shall  be  deemed  a  sufficient  voucher  for  the  sum  or  sums 
therein  expressed  to  have  been  expended.' 

"  The  law  making  these  provisions  is  in  full  force.  It  is  binding  upon 
all  the  Departments  of  the  Government,  and  especially  upon  the  Exec- 
tive,  whose  duty  it  is  '  to  take  care  that  the  laws  be  faithfully  executed.' 
In  the  exercise  of  the  discretion  lodged  by  it  in  the  Executive  several 
of  my  predecessors  have  made  '  certificates '  of  the  amount  '  of  such 
expenditures  as  they  have  thought  it  advisable  not  to  specify,'  and  upon 

754 


CHAP.  IV.]  SELF-CONSTITUTED    MISSIONS    ILLEGAL.  [§  109. 

these  certificates,  as  the  only  vouchej  s,  settleineuts  have  beeu  made  at 
the  Treasury." 

President  Polk's  Special  Message,  Apr.  10, 184tJ. 

"Actuated  undoubtedly  by  considerations  of  this  kind,  Congress  pro- 
vided such  a  fund>  coeval  with  the  organization  of  the  Government ; 
and  subsequently  enacted  the  law  of  1810  as  the  ]>('rinanent  law  of  the 
laud.  While  this  law  exists  in  full  force,  I  feel  bound  by  a  high  sense 
of  public  i^olicy  and  duty  to  observe  its  provisions,  and  the  uniform 
practice  of  my  predecessors  under  it. 
Ibid. 

XXXIII.  SELF-CONSTITUTED  MISSIONS  ILLEGAL. 

§109. 

"  A  self-cdustitutod  mission  to  the  French  Republic,  in  1798,  on  the 
part  of  Dr.  Logan,  of  Philadelphia,  led  to  the  ])assage  of  the  act  of 
Congress  of  the  30th  of  January,  1799,  subjecting  to  fine  and  imi)rison- 
luent  any  citizen  o.f  the  United  States  holding  eorresi)()ndence  with  a 
foreign  Grovernment  or  its  agents,  with  intent  to  influence  the  measures 
of  such  Government  in  relation  to  disputes  or  controversies  with  the 
United  States.  Statutes  at  Large,  vol.  i,  p.  613;  Hildreth's  History  of 
the  United  States,  2d  series,  vol.  ii,  280." 

Lawrence's  Wheaton,  ed.  1863,  p.  1003.  That  this  statute  is  still  in  force,  see 
Kev.  Stat.,§  5,335;  and  see  3  Randall's  Life  of  Jelf.,467;  IWhart.  Crim. 
Law,  §  274.     As  to  Dr.  Logan  personally,  see  Whart.  St.  Trials,  20, 21. 

"  The  object  of  Logan  in  his  unauthorized  embassy  seems  to  have 
been  to  do  or  obtain  something  which  might  give  opportunity  for  the 
'  true  American  character  to  blaze  forth  in  the  approaching  elections.' 
Is  this  constitutional  for  a  party  of  opposition  to  send  embassies  to  f(>r- 
eign  nations  to  obtain  their  interference  in  elections  i  " 

President  Adams  to  Mr.  Pickering,  Sec.  of  State,  Nov.  2, 1798.  8  J<iliii  Adams' 
Works,  615. 

"Mr.  Logan,  of  Philadelphia,  a  gentleman  of  fortune  and  education, 
and  certainly  not  destitute  of  abilities,  who  had  tor  several  years  been 
a  member  of  the  legislature  of  Pennsylvania,  an<l  has  since  been  a  Sena- 
tor of  the  United  States,  though  1  knew  he  had  been  oneof  the  old  con- 
stitutional  party  in  that  State,  and  a  zealous  (liseii>le  of  that  demo 
cratical  school  which  lias  j)ropagated  many  errors  in  America,  and, 
perha])s,  many  tragical  catastrophes  in  Europe,  went  to  France  either 
with  the  pretext  or  real  design  of  imi)roving  his  knowledge  in  agricult- 
ure, and  seeing  the  practice  of  it  in  that  country.  1  had  no  reason  to 
believe  him  a  corrupt  character  or  deficient  in  memory  or  veracity. 
After  his  return  he  called  upon  me,  and  in  a  polite  and  respectful  man- 
ner informed  me  that  he  had  been  honored  with  conversations  with  Tal- 
leyrand, who  had  been  well  acquainted  with  me,  and  repeatedly  enter- 
tained at  my  house,  and  now  visited  me  at  his  reipiest  to  express  to  me 
the  desire  of  the  directory,  as  well  as  his  own,  to  accommodate  all  dis- 
putes with  America,  and  to  forget  all  that  was  past ;  to  request  me  to 
send  a  minister  from  America,  or.  to  give  credentials  to  one  already  iu 

755 


§  109.]  DIPLOMATIC    AGENTS.  [CHAP.  IV. 

Europe  to  treat,  and  to  assure  me  that  my  minister  should  be  received 
and  all  disputes  accommodated,  in  a  manner  that  would  be  satisfactory 
to  me  and  my  country.  I  knew  the  magical  words,  Democrat  and 
Jacobin,  were  enough  to  destroy  the  credibility  of  any  witness  with 
some  people.  But  not  so  with  me.  1  saw  marks  of  candor  and  sin- 
cerity in  this  relation  that  convinced  me  of  its  truth." 

Mr.  J.  Adams,  ex-President,  9  John  Adams'  Works,  244.    Patriot  Letters,  No.  2. 

As  to  Dr.  Logau,  see  further  8  Johu  Adams'  Worlis,  615 ;  9  ibid,  243,  244,  265, 
293,  307. 

In  a  letter  of  Talleyrand  of  August  28,  1798,  to  Mr.  Pichon,  trans- 
mitted by  Mr.  Vans  INIurray  to  the  Department,  it  is  stated  that  Dr. 
Logan,  when  in  Paris,  was  not  received  as  a  secret  agent  by  the  French 
Government,  and  that  he  had  no  political  relations  with  that  Govern- 
ment. 

2  Am.  St.  Pap.  (For.  Eel.),  242. 

The  "Logan"  statute,  as  it  was  called,  remains,  with  some  slight 
modifications,  still  in  force.  As  it  now  appears  in  the  Eevised  Statutes, 
it  is  as  follows  : 

"  Sec.  5335.  Every  citizen  of  the  United  States,  whether  actually  resi- 
dent or  abiding  within  the  same,  or  in  any  foreign  country,  who,  with- 
out the  permission  or  authority  of  the  Government,  directly  or  indi- 
rectly, commences  or  carries  on  any  verbal  or  written  correspondence 
or  intercourse  with  any  foreign  Government,  or  any  officer  or  agent 
thereof,  with  an  intent  to  influence  the  measures  or  conduct  of  any 
foreign  Government,  or  of  any  officer  or  agent  thereof,  in  relation  to 
any  disputes  or  controversies  with  the  United  States,  or  to  defeat  the 
measures  of  the  Government  of  the  United  States  ;  and  every  person, 
being  a  citizen  of,  or  resident  within,  the  United  States,  and  not  duly 
authorized,  who  counsels,  advises,  or  assists  in  any  such  correspondence, 
with  such  intent,  shall  be  punished  by  a  tine  of  not  more  than  five 
thousand  dollars,  and  by  imprisonment  during  a  term  not  less  than  six 
months,  nor  more  than  three  years  ;  but  nothing  in  this  section  shall  be 
construed  to  abridge  the  right  of  a  citizen  to  ai)ply,  himself  or  his  agent, 
to  any  foreign  Government  or  the  agents  thereof  for  redress  of  any  in- 
jury which  he  may  have  sustained  from  such  Government,  or  any  of  its 
agents  or  subjects." 

The  last  clause  of  this  statute  was  appealed  to  by  Mr.  Seward  in  1861, 
to  stop  certain  action  of  Mr.  Bunch,  British  consul  in  Charleston,  South 
Carolina,  in  urging  on  the  British  Government  the  recognition  of  Cou 
federate  independence. 

Mr.  Adams  to  Earl  Russell,  Nov.  21, 1801.     See  Bernard's  British  Neutrality,  185 
As  to  Mr.  Bunch,  see  infra,  ^^  116,  110. 

"  It  was  probably  unknown  to  the  Spanish  Government  that  the  law- 
yers, in  giving  the  opinion  to  which  it  attaches  so  much  value,  (advising 
action  adverse  to  the  United  States,)  violated  a  positive  statute  of  their 
own  country  forbidding  communications  of  any  sort  with  foreign  Govern- 
ments or  agents  on  subjects  to  which  their  own  Government  is  a  party." 
Mr.  Madison,  Sec.  of  State,  to  Mr.  C  Pinckney,  Feb  6, 1804.  MSS.  lust.,  Min- 
isters. 

700 


CHAP.  I  V.J  PRESENTS    NOT    ALLOWABLE.  [§110. 

XXXIV.  PRESENTS  NOT  ALLOUAJiLE. 

§   110. 

In  the  session  of  1798  a  resolution  i)assed  the  Senate  autlioiiziiif;  Mr. 
Thomas  Pinckney  to  receive  certain  presents  tendeicd  him  by  the  courts 
of  Madrid  and  London,  respectively,  on  the  termination  of  his  missions 
to  those  idaces.  The  resolution  was  rejected  in  the  House,  thonj^h  a 
resolution  was  subsequently  unanimously  adopted  statinji"  that  ji^roiind 
of  this  rejection  was  public  policy,  and  dischumin.^-  any  personal  refer- 
ence to  Mr.  Pinckney.     (See  5  Hi'ldreth,  U.  S.  237.) 

"A  custom  i^revails  among  the  European  sovereigns,  upon  the  con- 
clusion of  treaties,  of  bestowing  presents  of  jewelj-y  or  other  articles  of 
pecuniary  value  upon  the  minister  of  the  power  with  which  they  were 
negotiated.  The  same  usage  is  repeated  ui)on  the  minister's  taking 
leave  at  the  termination  of  his  mission.  In  Great  Britain  it  is  usual  to 
offer  the  minister,  at  his  option,  a  sum  of  money,  graduated  according 
to  his  rank,  or  a  gold  box  or  other  trinket  of  equal  value.  Tlie  accept- 
ance of  such  presents  by  ministers  of  the  United  States  is  expressly 
forbidden  by  the  Constitution,  and  even  if  it  were  not,  while  the  United 
States  has  not  adopted  the  custom  of  inaJcing  am^h  ])resents  to  the  diplo- 
matic agents  of  foreign  powers,  it  can  scarcely  be  consistent  with  the 
delicacy  and  recii)rocity  of  intercourse  between  them  for  the  ministers 
of  the  United  States  to  receive  such  ftivors  from  foreign  princes  as  the 
ministers  of  those  i)owers  never  can  receive  from  this  Government  in 
return.  The  usage,  exceptionable  in  itself,  can  be  tolerated  only  by  its 
reciprocity.  It  is  expected  by  the  President  that  every  offer  of  such 
present  which  may  in  future  be  made  to  any  public  minister  or  other 
officer  of  this  Government  abroad,  will  be  respectfully  but  decisively 
declined." 

Mr.  J.  Q.  Aflaius,  Sec.  of  State,  to  Mr.  Eush,  minister  at  Londou,  Nov.  G,  1H17 
MSS.  Inst.  Gr.  Brit. ;  House  Doc.  No.  :502,  '2:3cl  Cong.,  Istsess.  r 

"I  am  directed  by  the  President  to  instruct  the  ministers,  consuls, 
and  other  diplomatic  and  commercial  agents  of  the  United  States  that 
it  is  required  of  them  that  in  future  they  will  not,  unless  the  consent  of 
Congress  shall  have  been  previously  obtained,  accept,  under  any  cir- 
cumstances, presents  of  any  kind  whatever  from  any  king,  prince,  or 
foreign  state." 

Mr.  McLaue,  Sec.  of  State,  circular,  Jan.  6,  1834.    House  Doc.  No.  3U2, 23(1  Coni:., 
Ist  sess. 

This  document  contains  a  report  (March  4,  1834)  from  Mr.  Archer, 
from  the  Committee  on  Foreign  Affairs,  in  whicli  it  is  stnted  that  ''the 
Government  of  the  United  States  is  the  only  one  kiiown  to  lay  its  agents 
employed  in  foreign  intercourse  under  strict  interdiction  as  regards  the 
acceptance  of  presents  in  any  form.  This  interdiction  being  in  the  Con- 
stitution, could  derive  no  increase  of  notoriety  more  than  authority  from 
instructions  to  our  agents  abroad." 

767 


§  110.]  DIPLOMATIC    AGENTS.  [cHAP.  IV. 

Tlie  report  goes  on  to  say  that  the  acceptance  of  presents  has,  not- 
witlistanding,  taken  place  in  cases  when,  in  oriental  countries,  such 
acceptance  is  a  matter  of  invariable  usage,  and  when  "refusal  of  accept- 
ance would  furnish  occasion  for  resentment,  compromising  oftentimes 
the  efQcacy  of  the  agency,  or  it  might  be  even  the  official  immunities  or 
personal  security  of  the  agent."  The  presents  in  such  cases,  when  not 
l)erishable,  have  been  deposited  in  the  State  Department,  or,  when  not 
susceptible  of  such  deposit  (as  with  horses),  sold,  and  the  iiroceeds  sent 
to  the  Treasury. 

On  the  subject  of  acceptiug  office  or  honors  from  a  foreign  country, 
we  have  the  following: 

"  While  recognizing  to  the  fullest  extent  the  eminent  service  of  Cap- 
tain Martinez,  of  th^  Chilian  ship-of-war  Meteor,  in  rescuing  the  sur- 
vivors of  the  crew  of  the  United  States  merchant  ship  Manchester, 
under  circumstances  of  extreme  distress,  the  uniform  practice  of  this 
Government  forbids  the  presentation  to  that  of3Bcer,  in  its  own  name, 
of  any  tangible  token  of  this  recognition.  As  all  officers  of  the  United 
State  are  forbidden  to  receive  such  rewards  from  foreign  Governments 
for  actions  or  services  of  striking  merit,  it  is  deemed  delicate  not  to 
confer  obligations  in  this  respect  upon  foreign  officers,  which  their 
Governments  could  not,  under  similar  circumstances,  be  j)ermitted  to 
reciprocate. 

"In  the  mercantile  marine  no  such  difficulty  exists,  and  Congress,  as 
you  are  aware,  has  placed  a  liberal  fund  at  the  disposal  of  the  Presi- 
dent for  the  purpose  of  enabling  him  to  offer  suitable  testimonials  to 
those  brave  men  who  so  often  imperil  their  own  lives  in  behalf  of 
others." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Starkweather,  Sept.  1,  1855.     MSS.  Inst.,  Chili. 

"The  Constitution  of  the  United  States  provides  that  no  person  hold- 
ing any  office  of  profit  or  trust  under  the  United  States  shall  without 
the  consent  of  Congress  accept  of  any  office  or  title  of  any  kind  what- 
ever from  any  king,  prince,  or  foreign  state.  The  terms  of  this  provis- 
ion of  the  Constitution  of  the  United  States  neither  prevent  nor  author- 
ize persons  who  may  hold  office  under  any  one  of  the  States  from  accept- 
ing an  appointment  under  a  foreign  Government." 

Mr.  Hale,  Asst.  Sec.  of  State,  to  Mr.  Eoseuberpj,  May  22. 1872.     MSS.,  Doiu.  Let. 

"Diplomatic  officers  are  forbidden  from  asking  or  accepting,  for  them- 
selves or  other  persons,  any  presents,  emolument,  pecuniary  favor,  office, 
or  title  of  any  kind  from  any  foreign  Government.  It  not  unfrequently 
hax)pens  that  diplomatic  officers  are  tendered  i^resents,  orders,  or  other 
testimonials  in  acknowledgment  of  services  rendered  to  foreign  states 
or  their  subjects.  These  cannot  be  accepted  without  previous  author- 
ity of  Congress. 

"It  is  thought  more  con^nant  with  the  character  of  the  diplomatic 
representation  of  the  United  States  abroad  that  every  offer  of  such 
presents  should  l)e  respectfully,  but  decisively,  declined.    This  having 

758 


CHAP.  IV. J  PRESENTS    NOT    ALLOWABLE.  [§  110. 

been  for  several  years  a  stamliiij;  instruction  to  all  our  a;,a'Hts  abroad, 
the  rule  is,  probably,  so  well  known  as  to  i)reveut  the  otier  oi"  such 
presents  iu  future;  but  it  is  deemed  proper  to  call  the  attention  of  ofh- 
cers  to  the  subject,  and  to  observe  that,  should  there  be  reason  to  antic- 
ipate such  an  oft'er,  informal  notice,  given  in  the  proper  (juarter,  of  the 
l^rohibitiou  against  accepting  a  direct  tender  thereof  would  avoid  the 
apparent  ungraciousness  of  declining  a  courtesy." 

Printed  Pers.  Inst.,  Di]>.  Agents,  IHn.'). 

Ab  to  accepting  and  giving  prtisents,  see  Mr.  Webster,  Sec.  of  State,  to  Mr.  CubIi- 
ing,  May  8,  1843,  (luoted  siqyra,  ^  87. 

See  as  to  presents  to  the  President  of  the  United  States,  Senate  Rep.,  Ex.  Doc. 
No.  23,  37th  Cong.,  2d  sess. 

As  to  presents  offered  to  George  P.  Marsh,  arbitrator  between  Italy  and  Switz- 
erland on  a  qnestion  of  bonndary,  by  those  Governments,  see  Senate  Mis. 
Doc.  10,  44th  Cong.,  Ist  sess. 

As  to  report  in  favor  of  Mr.  J.  R.  Hawley's  acceptance  of  decorations  fioui  the 
Governments  of  the  Netherlands  and  of  Japan,  July  15, 1882,  see  House  Rep., 
1652,  47th  Cong.,  Ist  sess. 

769 


CHAPTER  V. 

CONSULS. 

I.  Eligibility  of,  (S  113. 

II.  Appointment  and  qualifying  of,  §  114. 

III.  Exequatur,  ^  115. 

IV.  Dismissal,  §  116. 

V.  Not  ordinarily  diplomatic  agents,  §  117. 

VI.  Vice-consuls  and  consular  agents,  ^  118. 

VII.  Not  to  take  part  in  politics,  ^  119. 

VIII.  Privilege  as  to  process,  §  120. 

IX.  Other  privileges,  §  121. 

X.  Eight  to  give  asylum  and  protection,  §  122. 

XI.  Business  relations  of,  *J  123. 

XII.  Port  jurisdiction  of  seamen  and  shipping,  §  124. 

XIII.  Judicial  functions  in  semi-civilized  lands,  §  125. 

I.  ELIGIBILITY  OF. 

§  113. 

"  If  Congress  should  think  proper  to  appoint  consuls  we  are  humbly 
of  opinion  that  the  choice  will  fall  most  justly,  as  well  as  naturally,  on 
Americans,  who  are,  in  our  opinion,  better  qualified  for  this  business 
than  any  others,  and  the  reputation  of  such  an  office,  together  with  a 
moderate  commission  on  the  business  they  may  transact,  and  the  advan- 
tages to  be  derived  from  trade,  will  be  a  sufficient  inducement  to  under- 
take it,  and  a  sufficient  reward  for  discharging  the  duties  of  it." 

Messrs.  Franklin,  Lee,  and  Adams,  to  the  President  of  Congress,  July  20, 1778. 
7  John  Adams'  Works,  20.     See  also,  ibid.  209. 

"From  the  nature,  variety,  and  importance  of  consular  duties,  and 
their  bearing  on  the  commercial  interests  of  nations,  consuls  ought 
always  to  be  citizens  of  the  country  which-  they  represent.  Accordingly 
Vattel  (Book  2,  cap.  2,  sec.  34)  declares  that  '  the  functions  of  a  consul 
require,  in  the  first  place,  that  he  should  be  not  a  subject  of  the  state 
where  he  resides,  as,  in  this  case,  he  would  be  obliged  in  all  things  to 
conform  to  its  orders,  and  thus  not  be  at  liberty  to  acquit  himself  of 
the  duties  of  his  office.'  Chitty,  in  his  Commercial  Law  (vol.  1,  page 
48),  adopts  the  same  principle.  It  is  true  he  proceeds  to  say :  "  But, 
contrary  to  this  i^rinciple,  it  is  not  unusual  to  appoint  a  native  of  the 
foreign  state  to  be  consul  there,  as  in  Portugal,  Spain,  and  Italy,  where 
there  is  a  scarcity  of  British  subjects,  and  in  which  it  has  been  custom- 
ary for  the  consul-general  to  api)oint  natives  of  such  countries  to  act  as 
760 


CHAP,  v.]  ELIGIBILITY    OP.  [§113. 

their  deputies  at  inferior  ports.'    He  adds,  however,  '  but  this,  it  has 
been  observed,  is  an  unwarrantable  and  impolitic  practice.' 

"The  President,  at  an  early  period  of  liis  administration,  had  this 
subject  under  consideration,  and  determined  to  appoint  no  consuls  wlio 
were  not  American  citizens,  and,  indeed,  several  consuls  have  been 
removed  because  they  did  not  possess  this  qftalification." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Donelson,  Dec.  IG,  184G.     MSS..Iust.,  Prussia. 

"As  a  general  rule  it  is  preferable  that  United  States  citizens  only 
should  be  appointed  to  all  consular  ofiices.  When,  however,  none  can 
be  found  to  serve  at  a  i)articular  place,  aliens  may  be  selected,  giving 
the  prtiference  to  citizens  or  subjects  of  other  nationalities  than  that  of 
the  country  where  the  officer  is  to  serve. 

"When,  however,  no  such  person  can  be  found  a  subject  of  the  coun- 
try may  be  api)ointed  if  not  contrary  to  law  or  treaty.  If  any  other 
country  has  a  consular  officer  in  Tripoli  who  is  a  Turkish  subject  the 
United  States  may  claim  the  same  privilege  under  their  treaty.  In  the 
case  of  a  consular  agent,  however,  it  would  be  advisable  previously  to 
name  to  the  local  authorities  the  person  proposed  to  be  appointed,  if 
they  should  not  object." 

Mr.  Hunter,  2d  Asst.  Sec.  of  State,  to  Mr.  Vidal,  Aug.  11,  187:?.     MSS.  Inst., 
Barb.  Powers. 

"  The  experience  of  the  Government  has  demonstrated  the  inconven- 
ience and  often  serious  embarrassment  resulting  from  the  appointment 
of  naturalized  citizens  to  consulates  within  the  country  of  their  nativity, 
while  with  regard  to  appointments  in  other  countries  they  stand  on  the 
same  footing  as  all  other  citizens." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Glover,  Apr.  7,  1870.     MSS.  Dom.  Let. 
As  to  the  impolicy  of  appointing  naturalized  citizens  as  consuls  to  the  country 
of  their  origin,  see  Schuyler's  Am.  Diplom.,  79. 

By  section  1744,  Eevised  Statutes,  "  No  compensation  provided  for 
any  officer  mentioned  in  section  sixteen  hundred  and  seventy  five,  or  for 
any  assistant  secretary  of  legation,  or  any  approjjriation  therefor,  shall 
be  applicable  to  the  payment  of  the  compensation  of  any  person  ap- 
pointed to  or  holding  any  such  office  who  shall  not  be  a  citizen  of  the 
United  States  ;  nor  shall  any  other  compensation  be  allowed  in  any  such 
case." 

Section  1675  is  as  follows  : 

"  Embassadors,  envoys  extraordinary,  and  ministers  plenipotentiary, 
ministers  resident,  agents,  and  secretaries,  and  second  secretaries  of 
legation,  shall  be  entitled  to  salaries  as  hereinafter  provided. 

'.'  Envoys  extraordinary  and  ministers  i)lenipotentiary  to  France,  Ger- 
many, Great  Britain,  and  Russia,  seventeen  thousand  five  liuiidred 
dollars  each;  to  Austria,  Brazil,  China,  Italy,  Japan,  Mexico,  and 
Spain,  twelve  thousand  dollars  each  ;  to  Chili  and  Peru,  ten  thousand 
dollars  each. 

"  Minister  resident  accredited  to  Guatemala,  Costa  Rica,  Honduras, 
Salvador,  and  Nicaragua,  ten  thousand  dollars. 

"Minister  resident  at  Uruguay,  ten  thousand  dollars. 

761 


§  113.]  CONSULS.  [chap.  v. 

"  Ministers  resident  at  Portugal,  Switzerland,  Greece,  Belgium,  Neth- 
erlands, Denmark,  Sweden  and  Norway,  Turkey,  Ecuador,  Colombia, 
Bolivia,  Venezuela,  Hawaiian  Islands,  and  the  Argentine  Eepublic, 
seven  thousand  live  hundred  dollars  each. 

"Minister  resident  and  consul  general  at  Hayti,  seven  thousand  five 
hundred  dollars. 

"  Minister  resident  and  consul-general  at  Liberia,  four  thousand  dol- 
lars. 

"Agent  and  consul-general  at  Alexandria,  three  thousand  five  hun- 
dred dollars. 

"  Secretaries  of  legation  to  London,  Paris,  Berlin,  and  St.  Petersburg, 
two  thousand  six  hundred  and  twenty-five  dollars  each, 

"  Secretary  of  legation  to  Japan,  two  thousand  five  hundred  dollars. 

"  Secretaries  of  legation  to  Austria,  Brazil,  Italy,  Mexico,  and  Spain, 
one  thousand  eight  hundred  dollars  each. 

"  The  second  secretaries  of  the  legations  to  France,  Great  Britain, 
and  Germany,  two  thousand  dollars  each." 

"Ambassadors  and  envoys  extraordinary  and  ministers  plenipoten- 
tiary shall  be  entitled  to  compensation  at  the  rates  following,  per  annum, 
namely: 

"Those  to  France,  Germany,  Great  Britain,  and  Russia,  each,  seven- 
teen thousand  five  hundred  dollars. 

"Those  to  Austria,  Brazil,  China,  Italy,  Japan,  Mexico,  and  Spain, 
twelve  thousand  dollars. 

"Those  to  all  other  countries,  unless  where  a  different  compensation 
is  prescribed  by  law,  each,  ten  thousand  dollars. 

"And,  unless  when  otherwise  provided  by  law,  ministers  resident  and 
commissioners  shall  be  entitled  to  compensation  at  the  rate  of  seventy- 
five  per  centum,  charges  d'aflaires  at  rate  of  fifty  per  centum,  and  secre- 
taries of  legation  at  the  rate  of  fifteen  per  centum,  of  the  amounts  allowed 
to  embassadors,  envoys  extraordinary,  and  ministers  plenipotentiary  to 
the  said  countries  respectively;  except  that  the  secretary  of  legation  to 
Japan  shall  be  entitled  to  compensation  at  the  rate  of  twenty-five  hun- 
dred dollars  per  annum. 

"  The  second  secretaries  of  the  legations  to  France,  Germany,  and 
Great  Britain  shall  be  entitled  to  comx)ensation  at  the  rate  of  two  thou- 
sand dollars  each  per  annum. 

In  the  consular  and  diplomatic  appropriation  bill,  approved  Feb- 
ruary 25,  1885,  there  is  the  following  clause : 

"  For  consular  officers  not  citizens  of  the  United  States,  six  thousand 
dollarsJ^  , 

This  item  is  also  found  in  the  consular  and  diplomatic  act  approved 
July  1, 1886.  It  is  intended  to  cover  salaries  of  vice-consuls  who  are  not 
United  States  citizens.  In  August,  188C,  it  is  said  that  there  is  not  a 
single  alien  appointed  to  a  salaried  consulate,  though  we  have  several 
cases  of  such  appointments  at  small  feed  consulates  and  commercial  , 
agencies. 

The  objections  to  the  appoiutmeut  of  inercliants  as  consuls  are  noticed  in  G 
Hunt's  Merch.  Mag.,  301 ;  10  ibid., 447;  12  Hid., 211 ;  16  De  Bow's  Eev.,  12. 

The  objections  to  the  appointment  of  aliens  as  consuls  are  stated  with  much 
force  in  12  Hunt's  Mag.,  211/. 

762 


CHAP,  v.]  APPOINTMENT    (J I' EXEQUATURS.        [§§114,115. 

II.  APPOINTMENT  AND  QUALIFYING  OF. 
§  114. 

The  consular  convention  between  France  an<l  the  United  States  did 
not  require  the  reception  of  consuls  without  respect  to  (piiilifications, 
nor  "supersede  reasonable  objections  to  a  parti(;ular.  jhtsom  who  ini;j:ht 
at  the  moment  V>e  obnoxious  to  the  nation  to  whi<;h  he  Mas  sent,  or 
whose  conduct  might  render  him  so  at  anj-  time  hereafter.'' 

Mr.  Jeliersou,  Hec.   of  State,  to  the  minister  of  France,  Dec.   '.>,   17'.i:{.      I  .Jell. 
Works,  90.     MSS.  Notes,  For.  Leg. 

Mr.  Livingston's  report  of  Mar.  2,  1833,  on  the  consular  system,  will  be  fouiul 
in  Senate  Doc.  No.  83,  23d  Cong.,  2d  sess. 

Attestation  is  not  essential  to  the  validity  of  a  consular  bond. 
1  Op.,  378,  Wirt,  1820. 

A  consul's  bond  takes  eflect  from  the  time  of  its  approval  by  the 
Secretary  of  State.  (R.  S.,  §  1G97.)  And  where  an  ap[)ointee  was  com- 
missioned consul  on  the  18th  January,  and  his  bond,  dated  l.'Uh  of  the 
same  month,  was  not  approved  until  the  27th,  this  was  held  valid. 

14  Oj).,  7,  Williams,  1872. 

"  The  provision  of  the  act  of  Congress  of  May  1.  1810,  fixing  a  salary 
to  the  consul  at  Algiers,  and  assigning  to  him  certain  duties,  treating 
that  place  as  belonging  to  a  Mohammedan  power,  ceased  to  be  operative 
when  the  country,  of  which  it  was  the  principal  city,  became  a  province 
of  France.  (See  acts  of  March  1,  1855,  and  August  18,  185G.) 
Mahoney  v.  U.  S.,  10  Wall.,  62. 

III.  EXEQUATURS. 
§  115. 

President  Washington's  order  revoking  the  exequaturs  of  Duplaine, 
French  vice-consul  at  Boston,  with  the  subsequent  correspondence,  is 
given  in  1  Am.  St.  Pap.  (For.  Kel.),  IGl  ff. 

As  to  revocation  of  exequaturs,  see  8  John  Adams'  Works,  r,7G  ;  9  ibid.,  0,  170. 

"  Consuls  are  indeed  received  by  the  Government  from  acknowledged 
sovereign  powers  with  whom  they  have  no  treaty.  But  the  exequatur 
for  a  consul-general  can  obviously  not  be  granted  without  recognizing 
the  authority  from  whom  his  appointment  proceeds  as  sovereign.  'The 
consul,'  says  Vattel  (book  2,  chap.  2,  §  34),  'is  not  a  public  minister; 
but  as  he  is  charged  icith  a  commission  from  his  sovereign^  and  received  in 
that  quality  by  them  where  he  resides,  he  should  enjoy,  to  a  certain  ex- 
tent, the  protection  of  the  law  of  nations.' 

763 


§115.]  CONSULS.  [chap.  V. 

"  If  from  this  state  of  tbiiigs  the  inbabitauts  of  Buenos  Ayres  cannot 
enjoy  tbe  advantage  of  being  ofiicially  rei^resented  before  the  courts  of 
the  United  States  bj^  a  consul,  while  the  subjects  of  Spain  are  entitled 
to  that  privilege,  it  is  an  inequality  resulting  from  the  nature  of  the  con- 
test in  which  they  are  engaged,  and  not  from  any  denial  of  their  rights, 
as  parties  to  a  civil  war.  The  recognition  of  them,  as  such,  and  the 
consequent  admission  of  their  vessels  into  the  ports  of  the  United  States 
operates,  with  an  Inequality  far  more  important,  against  the  other  party 
to  that  contest,  and  in  their  favor," 

Mr.  Adams,  Sec.  of  State,  to  tlie  President,  Jan.  28,  1.S19.     MSS.  Report  Book. 

"  The  power  of  appointing  consuls  or  vice-consuls  is  regarded  as  be- 
longing, in  the  first  instance,  exclusively  to  the  Government  whose  com- 
mercial interests  are  committed  to  their  care.  This  power,  however, 
is  considered  capable  of  being  delegated  to  such  persons  and  in  such 
manner  as  may  be  deemed  expedient  by  those  from  whom  the  authority 
must  emanate.  Before  an  exequatur  can  be  granted  by  the  President, 
recognizing  a  consul  or  vice-consul  of  any  nation  as  entitled  to  ex- 
ercise his  official  functions  in  this  country,  evidence  should  be  laid 
before  him  that  such  officer  is  duly  appointed,  which  could  only  be 
done,  consistently  with  the  views  just  expressed,  by  producing  a  com- 
mission, either  directly  from  his  Government  or  else  from  the  authori- 
ized  agent;  in  which  latter  case  it  should  be  accomi)anied  by  the 
instrument  investing  such  agent  with  the  necessary  authority.  This 
power  of  appointment  is  frequently  conferred  upon  consuls-general, 
with  or  without  limitation  or  modification,  but  is  not  necessarily  or 
uniformly  attached  to  their  office." 

Mr.  McLane,  Sec.  of  State,  to  Mr.  Lederer,  Feb.  28,  1834.     MSS.  Notes,  For.  Leg. 

The  action  of  the  Spanish  Government  in  refusing  exequaturs  to 
consuls,  is  final. 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Eaton,  Oct.  12,  1839.     MSS.  Inst.,  Spain. 

The  President,  after  commissioning  a  consul  to  whom  the  Govern- 
ment to  whom  the  consul  is  sent  objects,  "  will  not  revoke  the  commis- 
sion unless  he  should  be  satisfied  that  the  reasons  for  not  receiving  him 
were  well  founded  and  of  a  character  to  justify  (that)  Government  in 
refusing  an  exequatur." 

Mr.  Marcy,  Sec,  of  State,  to  Mr.  Daniel,  Nov.  7,  1853.     MSS.  Inst.,  Italy, 
As  to  refusal  of  exequatur  on  grounds  personal  to  consul,  see  Mr.  Seward, 
Sec.  of  State,  to  Mr.  Kirk,  Apr.  27,  1864.     MSS.  Inst.,  Arg.  Rep. 

The  insertion  of  conditions  in  an  exequatur  is  unusual,  and  when 
applied  to  United  States  consuls  abroad  will  be  excepted  to  by  the 
United  States. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Apr.  16,  1870.    MSS.  Inst.,  Spain. 

764 


CHAP,  v.]  EXEQUATURS.  [§11;"). 

An  exequatur  will  not  be  issued  to  n  consul  sent  l»y  ;i  i'ora'ign  (Jov- 
ernment  unless  he  presents  a  formal  commission. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Horner,  Dec.  2'.>,  18.'):{ ;  MSS.  NotoH,  Ar^.  Kep. 
See  Mr.  Fish,  Sec.  of  State,  to  Mr.  Garcia,  Jan.  2'.],  1872  ;   ibid. 

The  exequatur  of  the  Pontifical  consul  at  New  York  appointed  prior 
to  1871,  will  not  be  canceled  on  the  sole  ground  of  the  absorption  of 
the  Pope's  temporal  power  in  that  of  Italy. 

Mr.  Fish,  Sec.  of  State,  to  Baron  Blanc,  Jnly  18,  1876,     MSS.  Notes,  Italy. 

"  The  provisions  of  existing  consular  treaties  between  the  United 
States  and  foreign  countries  speak  in  general  terms  of  the  issuance  of 
an  '  exequatur '  on  recognizing  consular  officers,  ev^en  when  of  lower 
grade  than  that  of  full  consul.  Inasmuch  as  it  seems  inexpedient  that 
the  exequatur,  in  the  form  of  an  official  paper  signed  by  the  President  and 
bearing  the  great  seal  of  the  United  States,  should  respond  to  usual 
modes  of  appointment  of  foreign  consular  officers  other  than  by  a  regu- 
lar commission  signed  by  the  chief  executive  of  the  appointing  state,  and 
bearing  its  great  seal,  it  has  been  deemed  proper  to  issue  a  less  conspicu- 
ously formal  exequatur  in  the  case  of  subordinate  appointments  made 
by  the  consuls-general  or  consuls  of  foreign  powers  in  this  ccmntry  under 
their  own  signature  and  seal  of  office.  This  course,  besides  being  more 
conformable  to  the  principles  of  international  etiquette,  is  understood 
to  be  in  accordance  with  the  course  of  recognition  of  like  subordinate 
officers  of  the  United  States  in  foreign  countries." 

Mr.  Evarts,  Sec.  of  State,  to  Mr,  Sherman,  Dec.  12,  1879.     MSS.  Doni.  Let. 

"  Where  provisional  notification  is  given  the  Government  of  the 
United  States  of  the  appointment  of  a  consular  officer  pending  formal 
presentation  of  his  commission  and  application  for  an  exequatur,  no 
exequatur  or  certificate  of  recognition  issues,  but  the  Secretary  of  the 
Treasury  is  required  to  cause  the  officers  of  his  Department  to  give  tem- 
porary recognition  to  the  acts  of  such  consular  officer.  After  a  rea- 
sonable lapse  of  time,  if  no  further  action  be  taken  confirmatory  of  the 
appointment,  it  is  dropped  from  the  record." 

Mr.  Blaine,  Sec.  of  State,  to  Sir  E.  Thornton,  May  29,  1881.     MSS.  Notes,  Or.  Brit. 

"The  exercise  of  the  undoubted  right  of  withholding  an  exequatur 
is    *     *     *     an  extreme  one.     In  this  country  it  is  rarely  resorted  to." 
Mr.  Blaine,  Sec.  of  State,  to  Mr.  Morgan,   May  :U,  1881.     MSS.  Inst.,  Mox. 
See  also  same  to  same,  June  29,  1881, 

The  refusal  of  an  exequatur  by  a  foreign  Government,  when  not  in- 
volving an  invasion  of  the  prerogatives  of  the  United  States  under  the 
law  of  nations,  will  not  be  excepted  to. 

Mr,  Bayard,   Sec,  of  State,  to   Mr.    Cox,  Apr.  29,  1886.     MSS.  Inst.,  Turkey. 
See  same  to  same,  Mar.  24,  1886  ;  ibid. 

"When  ;i  consul  is  appointed  it  is  the  practice  of  the  Department  of 
State  to  send  the  consular  commission  to  the  diplomatic  rei)iosenta- 
tive  in  the  country  to  which  the  consular  district  belongs,  with  lustruc- 

765 


§  116.]  CONSULS.  [chap.  v. 

tioiis  to  apply  iu  tlie  proper  quarter  for  au  exequatur,  by  wbicli  the  cou- 
aular  officer  is  officially  recognized  and  authorized  to  discharge  his 
duties.  When  the  exequatur  is  obtained  it  is  transmitted  to  the  con- 
sular officer  at  his  post,  through  the  consulate-general,  if  there  be  one  in 
the  country,  otherwise  directly  to  his  address.  The  consular  commis- 
sion is  also  sent  to  him  at  the  same  time.  It  is  usual  also  to  apply  in 
the  same  manner  for  the  exequaturs  or  formal  recognition  of  subordinate 
officers.  The  practice  in  respect  to  such  officers  in  the  colonies  or  de- 
l)endencies  of  a  country  is  to  instruct  the  consul  general,  or  the  princi- 
pal consular  officer  if  there  be  no  consul-general,  to  apply  to  the  proper 
colonial  authority  for  permission  for  the  subordinate  to  act  temporarily- 
in  his  official  capacity  pending  the  result  of  the  request  for  the  exequa- 
tur. Upon  the  application  of  the  consular  officer,  or  of  the  consul- 
general  when  there  is  one,  the  diplomatic  representative  may  make  to 
the  minister  of  foreign  affairs  such  request  for  temi^orary  permission  to 
act  in  the  case  of  any  consular  officer  under  his  jurisdiction." 

Printed  Pers.  Inst.,  Dip,  Agents,  1885. 

"  Refusals  to  grant  the  exequatur  are  not  uncommon.  An  JWnglish  con- 
sul was  refused  by  Russia,  in  the  Caucasus,  because  it  was  alleged  that 
he  was  hostile  to  the  Russian  Government,  and  had  expressed  strong 
opinions  about  Russian  movements  in  Asia.  In  our  own  history,  with- 
out going  further  back,  a  consul  recently  appointed  to  Beirut  was  re- 
jected by  Turkey,  because  he  was  a  clergyman,  and  might  be  too  much 
connected  with  missionaries ;  another  was  rejected  by  Austria  on 
account  of  his  political  opinions,  he  having  previously  been  an  Austrian 
subject." 

Schuyler's  Am.  Diplom.,  96. 

IV.  DISMISSAL. 

§  116. 

The  exequatur  of  Mr.  Duplaine,  French  vice-consul  at  Boston,  was 
revoked,  iu  October,  1793,  for  the  reason  that  he  had,  "by  au  armed 
force,  opposed  the  course  of  the  laws  of  this  country  *  *  *  by  res- 
cuing out  of  the  hands  of  an  officer  of  justice  a  vessel  which  he  had 
arrested"  by  judicial  process. 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Monroe,  Oct.  3,  1793.  MSS.  Inst.,  Ministers. 
See  also  letter  of  same  date  to  Mr.  Duplaine.  MSS.  Dom.  Let.  1  Am.  St. 
Pap.  (For.Rel.),  178. 

Under  Jay's  treaty  each  Government  had  the  right  of  dismissing 
consuls  for  such  reasons  as  it  should  itself  think  proper.  But  this  did 
not  preclude  a  dismissal  based  on  special  reasons  of 'policy  to  be  spe- 
cially assigned. 

1  J.  Q.  Adams'  Mem.,  157. 

"The  President  of  the  United  States  requests  the  Secretary  of  State 
to  give  directions  for  preparing  letters  to  the  consul-general,  and  all  the 
other  consuls  and  vice-consuls  of  the  French  Republic  throughout  the 
United  States,  revoking  their  exequaturs,  and  a  ])roclamatioii  announc- 
ing such  revocation  to  the  public;  the  proclamation  to  be  published, 
766 


CHAI'.  v.]  NOT    ORDINARILV    DIl'LOMATIC    AGENTS.  [§  117. 

and  the  letters  expedited,  as  soou  as  the  law  shall  bi^  passed  declaring' 
the  treaties  and  convention  no  longer  obligatory." 

President  Adams  to  Mr.  Pickeriujj,  Sec.  of  State,  July  7,  1798.     8  John  Adams' 

AVorks,  57(5.' 
The  correspondence  with  Great  Britain  in  185G,  rehitivo  to  the  witlidrawal  of 

exequaturs' from  consuls  in  consequence  of  their  being  concerned  in  illegal 

enlisting,  will  bo  found  in  Br.  and  For.  St.  I'ap.  for  lfc57-'58,  vol.  48,  190, 

214,  220,  226,  273,  290. 

Mr.  Bunch,  British  consul  at  Charleston  at  the  beginning  of  the  late 
civil  war,  having  been  instructed  by  his  Goverinent,  in  agreement  with 
the  French  Government,  to  communicate  to  the  authorities  of  the  "so- 
called  Confederate  States  the  desire  of  those  Governments  that  the 
second,  third,  and  fourth  articles  of  the  Declaration  of  Paris  should  be 
observed  by  those  States,"  entered  upon  such  communication  with  the 
"Confederate  authorities."  This  was  sustained  by  his  Government, 
who  declined  to  recall  him.  The  Government  of  the  United  States,  for 
this,  as  well  as  for  other  rea-sons,  revoked  Mr.  Bunch'.s  exequatur. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  Oct.  23,  1861.    MSS.  Inst.,  Gr.Brit. 

See  supra,  U  97, 10.5, 109;  infra,  §  119. 
That  recall  of  consul  at  request  of  Government  to  which  he  is  sent  is  usual, 

see  Mr.  Fish,  Sec.  of  State,  to  Aristarchi  Bey,  Dec.  11,  1876.     MSS.  Notes, 

Turkey. 

Consuls  are  approved  and  admitted  by  the  local  sovereign.  If 
guilty  of  illegal  or  improper  conduct  their  exequatur  may  be  revoked, 
and  they  may  be  punished,  or  sent  out  of  the  country,  at  the  option  of 
the  offended  Government. 

CoppeU  V.  Hall,  7  Wall.,  542. 

If  a  consul  be  guilty  of  illegal  or  improper  conduct  he  is  liable  to 

have  his  exequatur  revoked  and  to  be  punished  according  to  the  laws 

of  the  country  in  which  he  is  consul,  or  he  may  be  sent  back  to  his  own 

country,  at  the  discretion  of  the  Government  which  he  has  offc^nded. 

2  Op.,  725,  Butler,  1835. 

V.  NOT  ORDINARILY  DIPLOMATIC  AGENTS. 

§117. 

"Consuls  are  not  diplomatic  characters,  and  have  no  immunities 
whatever  against  the  laws  of  the  land;  and  hence  they  can  be  i)rose- 
cuted  for  breach  of  neutrality  laws." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Gore,  Sept.  2,  1793.     MSS.  Dom.  Let. 

A  consul-general,  resident  as  such  in  the  Uniteil  States,  is  not  en- 
titled to  be  regarded  as  a  "  diplomatic  representative." 

Circular  of  Mr.  Van  Biu-en.  Sec.  of  State,  May  5,  1830.     MSS.  Dom.  Let. 

767 


§  117.]  CONSULS.  [chap.  v. 

A  consul-general,  bj"  the  law  of  nations,  is  not  entitled  to  any  diplo- 
matic immunity ;  nor  is  he  by  the  treaty  between  the  United  States  and 
Great  Britain. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Bates,  Nov.  21,   1865.     MSS.  Dom.  Let.     See 
fupra,  $  92. 

"  Consuls  have  diplomatic  functions  in  Barbary  States.  Tte  United 
Stales  consul  is  accredited  to  the  Emperor  of  Morocco."  But  such  con- 
suls yield  as  to  precedence  to  ministers  plenii^otentiary  from  other  sove- 
reigns. 

Mr.  Seward,   Sec.  of  State,  to  Mr.   McMath,  Dec.  30,  1868.     MSS.  Inst.,  Barb. 
Power?.     SeeMr.  Davis,  Asst.  Sec.  of  State,  to  Mr.  Vidal,  July  10,  1873.     Ihid. 

"  In  our  treatment  of  foreign  consuls  in  this  country,  while  we  recog- 
nize that  as  a  general  rule  consuls  are  not  entitled  to  diplomatic  exemp- 
tions, we  admit  the  principle  of  reciprocal  treatment,  and  indeed  take 
the  initiative  in  giving  to  foreign  consuls  all  rational  exemptions  in 
matters  deiJendent  on  their  ofiQcial  position,  especially  when  they  are 
not  engaged  in  business.  A  consul  not  transacting  business,  or  hold- 
ing property  here  in  his  personal  capacity,  is  not  taxed  by  reason  of  his 
official  residence,  and  the  official  supplies  sent  to  him  are  exempt  from 
customs  duties;  but  these  exemptions  should  be  reciprocal  and  depend 
on  our  consuls  receiving  like  treatment  in  the  foreign  country. 

"  It  seems  desirable  to  a  full  consideration  of  the  question  that  the 
British  rule  should  be  known,  and  in  the  event  of  its  being  different 
from  ours,  that  a  definite  understanding  should  be  had  between  the  two 
Governments." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Phelps,  July  21,  1885.     MSS.  Inst.,  Gr.  Brit. 

It  is  not  competent  for  a  consul,  without  the  special  authority  of  his 
Government,  to  interpose  a  claim  on  account  of  the  A^iolation  of  the 
territorial  jurisdiction  of  his  country. 

The  Anne,  3  Wheat.,  435. 

In  the  absence  of  other  representatives,  consuls  are  entitled  to  rep- 
reseat  their  fellow  countrymen  in  a  foreign  court  of  admiralty  without 
special  authority:  though  they  cannot,  without  special  authority,  re- 
ceive restitution  of  the  property  in  litigation. 
The  Bello  Corunnes,  6  Wheat.,  152. 

While  a  consul  of  a  foreign  power  is  not  entitled  to  represent  his 
sovereign  in  a  country  where  the  sovereign  has  an  ambassador,  he  is 
entitled  to  intervene  for  all  subjects  of  that  power  interested. 
Robsou  r.  The  Huntress,  2' Wall.,  jr.,  59. 

As  a  general  rule  a  consul  is  not  entitled  by  the  law  of  nations  to 
the  immunities  and  privileges  of  an  ambassador  or  public  minister. 

GittJngs  V.  Crawford,  Taney's  Decis.,  I, 

708 


CHAP,  v.]  NOT    ORDINARILY    DIPLOMATIC    AGENTS.  [§  117. 

Consuls,  unless  otherwise  provided  by  tireaty,  are  entitled  to  no  diplo- 
matic privileges. 

1  Op.,  41,  Bradford,  1794;  2  ibid.,  378,  Berrien,  1830. 

A  consul  is  not  such  a  imblic  minister  as  to  be  entitled  to  the  ])rivi- 
leges  appertaining  to  that  character,  nor  is  he  under  the  special  i)rotec- 
tiou  of  the  law  of  nations.  He  is  entitled  to  privileges  to  a  certain 
extent,  such  as  safe-conduct,  but  he  is  not  entitled  to  the  ju.s  gentium. 
It  may  be  considered  as  settled  law  that  consuls  do  not  enjoy  the  pro- 
tection of  the  law  of  nations  any  more  than  any  other  persons  who  enter 
the  country  under  a  safe-conduct. 

2  Op.,  725,  Butler,  1835. 

Consuls  do  not  enjoy  the  privilege  of  extraterritoriality. 

7  Op.,  18,  Gushing,  1854. 

When  a  consul  is  appointed  charge  d'affaires,  he  has  a  double  polit- 
ical capacity ;  and  though  invested  with  full  diplomatic  privileges,  he 
becomes  so  invested  as  charge  d'affaires,  not  as  consul. 

7  Op.,  342,  Cushing,  1855.     See  supra,  §  88. 

Such  extraterritoriality  as  consuls  enjoy  in  the  Mohammedan  states, 
for  example,  is  due  to  the  fact  that  these  states  are  not  admitted  to  a 
full  community  of  international  law  with  the  nations  of  Christendom, 
and  not  to  the  consular  office.  The  institution  of  consuls  originated  in 
the  mere  fact  of  differences  in  law  and  religion,  at  that  period  of  modern 
Europe  in  which  it  was  customary  for  distinct  nationalities,  coexisting 
under  the  same  general  political  head,  and  even  in  the  same  city,  to 
maintain  each  a  distinct  municipal  government.  Such  municipal  colo- 
nies, organized  by  the  Latin  Christians,  and  especially  by  those  of  the 
Italian  Republics  in  the  Levant,  were  administered,  each  by  its  consuls, 
or  proper  municipal  magistrates,  whose  commercial  relation  to  the  busi- 
ness of  their  countrymen  was  a  mere  incident  of  their  general  munic 
ipal  authority.  The  authorization  of  a  consul  to  communicate  directly 
with  the  Government  near  which  he  resides  does  not  endow  hi  in  with 
the  diplomatic  privileges  of  a  minister. 

7  Op.  342,  Cushing,  1855, 
Private  extraterritoriality,  as  to  consuls,  hjis  fallen  into  desuetude 
among  the  Governments  of  Christendom  j  but  it  is  still  claimed  by  us  in 
our  intercourse  with  non-Christian  nations,  though  not  conceded  to  their 
consular  officers  in  the  United  States. 

Ibid. 

In  the  United  States  Consular  Regulations,  as  revised  in  1881,  it  is 
stated  that  "  a  consular  officer  in  civilized  countries  now  has,  under 
miblic  law,  no  acknowledged  rej^resentative  or  diplomatic  character  as 
re^^ards  the  country  to  which  he  is  accredited.  He  has,  however,  :i 
certain  representative  character  as  affecting  the  commercial  interests 

S.  Mis.  162— VOL.  I 49  ^^^ 


§  117.]  CONSULS.  [chap.  v. 

of  the  country  from  which  he  receives  his  appointment,  and  there  may 
be  circumstances,  as,  for  example,  in  the  absence  of  a  diplomatic  rep- 
resentative, which,  apart  from  usage,  make  it  proper  for  him  to  address 
the  local  government  upon  subjects  which  relate  to  the  duties  and  rights 
of  his  office,  and  which  are  usually  dealt  with  through  a  legation."  In 
section  76,  "Although  consuls  have  no  right  to  claim  the  privileges  and 
immunities  of  diplomatic  representatives,  they  are  under  the  special 
protection  of  international  law,  and  are  regarded  as  the  officers  both 
of  the  state  which  appoints  and  the  state  which  receives  them.  The 
extent  of  their  authority  is  derived  from  their  commission  and  their 
exequatur;  and  it  is  believed  that  the  granting  of  the  latter  instrument, 
without  express  restrictions,  confers  on  the  consul  rights  and  privileges 
necessary  to  the  performance  of  the  duties  of  the  consular  office ;  and, 
generally,  a  consul  may  claim  for  himself  and  his  office,  not  only  such 
rights  and  i^rivileges  as  have  been  conceded  by  treaty,  but  also  such  as 
have  the  sanction  of  custom  and  local  law,  and  have  been  enjoyed  by 
his  predecessors,  or  by  consuls  of  other  nations,  unless  a  formal  notice 
has  been  given  that  they  will  not  be  extended  to  him." 

"A  consul  may  place  the  arms  of  his  Government  over  his  doors. 
Permission  to  display  the  national  flag  is  not  a  matter  of  right,  though 
it  is  usually  accorded,  and  it  is  often  provided  for  by  treaty.  *  *  * 
The  jurisdiction  allowed  to  consuls  in  civilized  countries  over  disputes 
between  their  countrymen  is  voluntary  and  in  the  nature  of  arbitration, 
and  it  relates  more  especially  to  matters  of  trade  and  commerce.  A 
consul,  however,  under  jjublic  law,  is  subject  to  the  payment  of  taxes 
and  municipal  imposts  and  duties  on  his  property  in  the  country  or  on 
his  trade,  and  generally  to  the  civil  and  criminal  jurisdiction  of  the 
country  in  which  he  resides.  It  is  probable,  if  he  does  not  engage  in 
business,  and  does  not  own  real  estate,  that  he  would  not  be  subject  to 
arrest  or  incarceration,  except  on  a  criminal  charge,  and  in  the  case  of 
the  commission  of  a  crime,  he  may  either  be  i^unisbed  by  local  laws,  or 
sent  back  to  his  own  country." 

"The  privileges  of  a  consul  who  engages  in  business  in  the  country 
of  his  official  residence,  are,  under  international  law,  more  restricted, 
especially  if  he  is  a  subject  or  citizen  of  the  foreign  state." 

It  is  added  that  inviolability  of  the  consular  archives  is  secured  by 
treaties  with  Austria-Hungary,  Belgium,  Denmark,  France,  Germany, 
Greece,  Mexico,  Portugal,  and  Sweden;  while  inviolability  of  the  con- 
sular office  and  dwelling  (but  not  as  an  asylum)  is  secured  by  treaties 
with  Belgium,  France,  Germany  (of  consuls  not  citizens),  and  Italy. 
Exemption  from  arrest,  except  for  crimes,  is  secured  by  convention  with 
Belgium,  Germany,  Netherlands,  and  Italy.  "In  Austria-Hungary  and 
France  he  is  to  enjoy  personal  immunities;  but  in  France,  if  a  citizen 
of  France,  or  owning  property  there,  or  engaged  in  commerce,  he  can 
claim  only  the  immunities  granted  to  other  citizens  of  the  country  who 
own  property,  or  to  merchants.  In  Austria-Hungary,  if  engaging  in 
business,  he  can  be  detained  only  for  commercial  debts.  *  ♦  *  In 
Great  Britain,  Netherlands  (as  to  colonies),  Nicaragua,  and  Paraguay, 
they  are  regarded  as  appointed  for  the  protection  of  trade." 

U.  S.  Cons.  Reg.,  U  75,  76,  77,  78. 

770 


CHAP,  v.]  VICE-CONSULS    AND    CONSULAR    AGENTS.  [§118. 

VI.    VICE-CONSULS  AND  CONSULAR  AGENTS. 

§  lis. 

It  is  not  usual  to  grant  an  exequatur  to  any  officer  below  the  grade 
of  vice-consul. 

Mr.  Forsyth,  Sec.  of  State,  to  Prince  Metternich,  Dec.  26,  18:i4.  MSS.  Not^s, 
Germ.  St.  See  Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Lederer,  Feb.  3,  1838; 
ihid. 

"  Consuls  of  the  United  States  have  no  right  to  appoint  vice-consuls," 
and  "  the  consular  agents  they  are  authorized  to  constitute  are  not  re- 
garded as  officers  of  the  Government  or  as  entitled  to  any  privileges  or 
immunities  from  the  Governments  within  whose  territories  they  may 
exist. 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Morelli,  June  20,  1837.  MSS.  Notes,  Italy, 
See  same  to  same,  Nov.  16,  1836. 

"A  consular  agent,  as  you  are  aware,  is  not,  strictly  speaking,  a 
United  States  officer,  being  merely  the  agent  of  the  consul  from  whom 
he  receives  his  appointment,  though,  pursuant  to  a  regulation  here  long 
established,  the  consuls  must  report  the  names  of  the  agents,  whom 
they  appoint,  to  this  Department  for  approval.  This  Government  does 
not  ask  the  foreign  Government  within  whose  territory-  they  reside  to 
receive  and  recognize  them  as  its  officers  or  agents.  They  are  not  en- 
titled to  a  consular  flag,  and  may  not  use  any  insignia  of  otlice  contrary 
to  the  laws  of  the  country  where  they  are. 

"  It  was  Mr.  Webster's  opinion  that  '  the  consuls  of  the  United  States 
have  no  authority  to  appoint  vice-consuls,  they  being  expressly  in- 
structed to  appoint  consular  agents  at  such  jvlaces  within  their  consular 
jurisdiction  as  they  may  deem  necessary; '  and  also  that  a  'a  consular 
agent  stands  in  the  same  relation  that  any  citizen  would  hold  under 
similar  circumstances,  and  it  is  as  a  citizen  of  the  United  States  only  that 
be  can  be  considered,  and  not  as  an  officer  acting  under  the  authority 
of  the  United  States.' " 

Mr.  Hunter,  Asst.  Sec.  of  State,  to  Mr.  Everett,  May  28,  \^?>'^.     MSS.  Dom.  Let. 

Consular  agents  are  now  not  appointed  by  consuls,  but  are  nominated 
by  them  and  approved  by  the  consul-general,  if  there  be  one,  in  the 
country  to  which  the  consul  is  accredited,  and  receive  a  certificate  of 
appointment  from  the  Secretary  of  State. 
U.  S.  Cons.  Reg.,  1881. 

A  "  deputy  consul-general "  is  not  a  "  consular  officer  "  whose  action 
validates  a  marriage  under  the  act  of  June  22, 1860  (Kev.  Stat.,  §  4082). 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Beardsley.  Jan.  30,  1874.  MSS.  Inst.,  Barb. 
Powers.  See  as  to  marriage  »)ore  fully,  infra,  ^  800/. ;  Printed  Pere.  Inst., 
Dip.  Agents,  $  137. 

771 


§  119.]  CONSULS.  [chap.  v. 

The  practice  in  the  United  States,  on  notification  of  the  appointment 
by  a  foreign  consul-general  of  a  vice-consul,  or  a  consular  agent,  is  for 
the  President  to  require  a  formal  certificate  of  appointment  by  the 
Government  represented  by  such  vice-consul  or  agent,  though  it  will 
be  sufficient  if  it  appear  that  the  appointment  was  made  by  the  consul- 
general  in  conformity  with  the  laws  of  his  country. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Shishkiu,  Nov.  14,  ltf79.     MSS.  Notes,  Russia. 

Exequaturs  do  not  issue  to  consular  agents  or  vice-consuls.  "  Orders 
to  the  Federal  of&cers  of  the  district  where  the  appointee's  functions  are 
exercised  are  deemed  sufficient  recognition." 

Ibid. 

The  practice  of  the  British  Governmentis  not  tosubmit  the  commissions 
of  •'  pro-consuls,"  or  to  ask  for  their  recognition  from  the  Government 
within  whose  jurisdiction  they  are  to  act.  "  Unless  Her  Majesty's  Gov- 
ernment should  be  pleased  to  adopt  a  different  course  in  this  regard 
hereafter,  the  pro-consuls  will  continue  to  be  omitted  from  the  list  of 
regularly  recognized  consular  officers." 

Mr.  Blaine,  Sec.  of  State,  to  Sir  E.  Thoruton,  May  29,  1881.     MSS.  Notes,  Gr. 
Brit. 

Vice-consuls  are  competent  to  hold  consular  courts  in  China  when 
dulj'  ai)pointed  or  approved  as  such  bj'  the  Secretary  of  State.  (See 
act  of  February  1,-1876,  amending  Eev.  Stat.,  §  4130.) 

7  Op.,  495,  Cushing,  1855.     See  infra,  ^  125. 

A  substitute  or  vice-consul,  left  in  charge  of  the  consulate  during  the 
temporary  absence  of  the  consul,  is  to  be  compensated  out  of  the  statute 
emoluments  of  the  office,  subject  to  regulations  of  the  Department.  An 
acting  consul  in  charge  of  a  consulate  during  actual  vacancy  of  the  con- 
sulate, is  entitled  to  receive  the  statute  compensation  of  the  office. 

7  Op.,  714,  Cushing,  1856. 

Section  3  of  act  of  1866  (Rev.  Stat.,  §  1729)  is  limited  to  unsalaried 
consuls  and  commercial  agents,  and  does  not  embrace  consular  agents. 

12  Op.,  975  Stanbery,  1866. 

VII.  NOT  TO  TAKE  PART  IN  POLITICS. 
§119. 

Interference  by  a  consul  of  the  United  States  in  the  jiolitical  affairs 
of  the  country  of  his  residence  will  be  a  sufficient  ground  for  his  recall. 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Hunter,  Nov.  16,  1836.     MSS.  Inst.,  Brazil. 

"  It  is  a  Standing  instruction  to  United  States  consuls  abroad  to  ab- 
stain from  interference  in  the  political  affairs  of  the  countries  in  which 
they  reside." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Bertinatti,  Nov.  16,  1859.     MSS.  Notes,  Italy. 
772 


CHAP,  v.]  NOT    TO    TAKE    PART    IN    POLITICS.  [§11^- 

"  It  (your  dispatch)  was  accoiniciiiiod  by  Karl  Jiusscirs  rcjily  to  tlie 
note  which,  in  execution  of  my  instructions,  you  juhlresscd  to  liiiu  on 
the  subject  of  the  detention  of  a  Ix-arer  of  dispatdu's  sent  by  Itobcit 
iiuucli.  Her  Majesty's  consul  at  Chark'ston,  and  tbe  substitution  In  me 
of  another  person  to  convey  his  cousuhir  bag  to  Great  IJritaiii. 

"  Earl  Eusseli  says,  in  his  not",  that  if  it  had  been  true  (as  we  ai)pre- 
hended)  that  Mr.  Bunch  had  inserted  into  his  oflicial  bag  and  covered 
with  his  official  seal  the  correspondence  of  the  enemies  of  this  Govern- 
ment in  the  United  States,  he  would  have  been  guilty  of  a  grave  l)reach 
of  his  duty  towards  his  own  Government  and  tliat  of  the  United  States. 
Earl  Russell  says  also,  that  on  tbe  opening  of  the  bag  at  the  foreign 
office  (in  London)  no  ground  for  that  suspicion  was  revealed. 

"  These  declarations,  made  with  unquestioned  candor  and  freedom, 
are  entirely  satisfactory  upon  the  main  point  involved  in  your  note.  It 
is,  therefore,  a  pleasant  duty  for  me  to  instruct  you  to  reply  to  Earl  Rus- 
sell that  this  Government  regrets  the  interruption  of  the  passage  of  the 
consular  dispatches,  which  has  occurred  in  consequence  of  a  mistaken 
suspicion  that  the  agent  who  transmitted  them  was  abusing  the  conli- 
dence  of  the  two  Governments.  I  sincerely  hope  that  no  serious  incon- 
venience resulted  from  the  delay. 

"  Earl  Russell,  after  making  the  explanations  which  I  have  quoted, 
l)roceeds  to  remark  that  Her  Majesty's  Government  was  ad^ised  that 
the  suspicion  of  the  conveyance  by  post  of  letters  from  British  subjects 
between  the  Northern  States  and  the  Southern  States  was  in  contraven- 
tion of  the  treaty  on  this  subject  contracted  between  the  two  Govern- 
ments; that  Her  Majesty's  Government  had  been,  nevertheless,  unwilling 
to  press  this  view  on  the  United  States ;  but  that  this  stoppage  of  the  jxist 
has  occasioned  great  inconvenience  to  individuals.  His  lordship  tlon 
submits  a  copy  of  a  note  which  Mr.  Bunch  had  written  to  the  under- 
secretary of  state,  showing  the  mode  in  which  he  had  endeavored  to 
])alliate  the  evil  by  inclosing  private  letters  in  his  official  bag.  Ilis  lord- 
ship then  dismisses  the  subject,  saying  that  he  shall  address  any  further 
communication  he  may  have  to  make  thereon  to  Lord  Lyons. 

"  Mr.  Bunch,  in  his  note,  states  that  he  incloses  in  the  bag,  to  the 
under-secretary's  address,  certain  letters  which  arc  intended  lor  the 
post,  and  that  they  are  principally  letters  of  servants,  governesses,  &c., 
British  subjects,  which,  owing  to  the  discontinuance  of  the  post,  they 
are  unable  to  send  in  any  other  way  ;  also,  that  some  of  the  letters  con- 
tain dividends,  the  property  of  British  subjects,  which  they  coidd 
scarcely  receive  without  Mr.  Bunch's  intervention.  lie  adds  that  be 
hopesthat  there  is  no  irregidarity  in  this  proceeding,  since  no  exjiensr 
of  postage  is  incurred,  because  the  bag  in  which  the  letters  are  con- 
tained goes  by  a  private  hand  to  Liveri)ool.  I  read  this  note  under  the 
light  thrown  upon  it  by  the  explanations  of  Earl  Russell,  which  show- 
that  the  whole  correspondence  contained  in  the  bag  was  innocent. 

773 


§  120.]  CONSULS.  [chap.  v. 

"  In  these  circumstances,  what  remains  open  to  special  exception  in 
Mr.  Bunch's  proceeding  is  his  substitution  of  his  consular  bag  and  offi- 
cial seal  for  the  mail  bag  and  mail  locks  of  the  United  States,  and  of  his 
own  mail  carrier  for  the  mail  carriers  of  the  United  States. 

"  The  proceeding  of  the  consul  in  these  respects  certainly  is  not  de- 
fensible on  any  ground  of  treaty  or  international  law  ;  nor  does  Earl  Rus- 
sell in  anyway  imply  that  he  deems  it  is  so.  The  proceeding,  however, 
was  practically  harmless,  and  it  is  not  likely  to  be  repeated." 

jVIr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  Oct.  22,  1861.     MSS.  Inst.,  Gr.  Brit.; 
Dip.  Corr.,  1861.     See  supra,  §§  97, 105, 116. 

VUI.     PRIVILEGES  AS  TO  PROCESS. 

§  120. 

"  It  is  believed  that  under  the  laws  and  usages  of  France  favors  and 
exemptions  are  extended  to  foreign  consuls,  and  that  in  conducting  his 
defense  Mr.  CroxalPs  proper  course  [in  a  proceeding  against  him  for 
assault]  would  have  been  to  plead  the  i)rivileges  of  his  official  char- 
acter. However  this  may  be,  the  imprisonment  of  an  American  consul 
residing  in  a  foreign  port  is  a  serious  evil  and  inconvenience,  not  only 
as  lessening  his  influence  as  an  officer  of  his  Government,  but  as  calcu- 
lated to  i)roduce,  in  some  cases,  injurious  effects  on  the  interests  of 
American  citizens  confided  to  him,  and  to  reflect  dishonor  on  his  coun- 
try. It  is,  also,  an  infraction  of  the  law  of  nations.  Yattel  says  (vol. 
2,  chap.  2,  §  34)  that  a  sovereign  '  by  the  very  act  of  receiving  a  consul, 
tacitly  engages  to  allow  him  all  the  liberty  and  safety  necessary  in  the 
proper  discharge  of  his  functions,  without  which  the  admission  of  the 
consul  would  be  insignificant  and  deceptive.'  And,  again,  speaking  of 
consular  functions,  the  same  author  observes  that  'they  seem  to  require 
that  the  consul  should  be  independent  of  the  ordinary  criminal  justice 
of  the  place  where  he  resides,  so  as  not  to  be  molested  or  imprisoned, 
unless  he  himself  violates  the  law  of  nations  by  some  enormous  misde- 
meanor.' Our  Constitution  recognizes  this  doctrine  by  providing  that 
in  all  cases  affecting  consuls  the  Supreme  Court  alone  shall  have  origi- 
nal jurisdiction." 

Mr.  Forsytli,  Sec.  of  State,  to  Mr.  Cass,  Dec.  6,1836.     MSS.  lust.,  France. 
As  to  diplomatic  priTileges,  see  supra,  §  $  92  ff. 

"If,  however,  as  appears  to  have  been  the  fact,  he  (Mr.  Croxall)  stood 
upon  the  same  ground  as  all  other  foreign  consuls  whose  Governments 
had  not  entered  into  conventional  stipulations  with  France  to  secure 
to  those  functionaries  certain  privileges  and  immunities,  the  United 
States  have  no  special  reason  to  complain  of  the  course  of  proceeding 
against  him.     *     *     * 

"So  far  as  regards  the  civil  action  the  United  States  do  not  assert 
the  right  to  interfere,  except  in  cases  of  gross  injustice,  of  which  the 
774 


CHAP,  v.]  PRIVILEGES    AS    TO    PROCESS.  [§  120. 

Freuch  tribunals,  the  President  believes,  are  incapable.  Whether  the 
arrest  and  detention  were  on  the  civil  or  criminal  process  is  not  yet 
understood.  On  the  whole  the  President  thinks  it  proper  to  leave  the 
subject  to  your  discretion,  to  be  pursued  or  terminated,  as  you  may  deem 
best,  with  this  suggestion,  however,  that  the  occasion  be  taken  to  estab- 
lish the  understanding  that  whenever  a  consul  of  either  party  shall  be 
the  subject  of  criminal  prosecution  requiring  restraint  upon  him,  and 
thus  interfering  with  his  official  duties,  the  Government  proceeding 
against  him  shall  give  notice  to  the  diplomatic  rei)resentative  of  the 
other  party  of  the  charge  against  the  consul,  that  such  arrangements 
for  the  performance  of  the  consular  duties,  pending  the  investigation, 
may  be  made  as  the  honor  and  interest  of  his  Government  may  require. 
"  To  remove  a  doubt  which  you  seem  to  have  on  the  subject,  it  may 
be  proper  to  state  that  the  clause  in  the  Constitution  of  the  United 
States  which  gives  to  the  Supreme  Court  original  jurisdiction  in  all 
cases  affecting  embassadors,  other  public  ministers,  and  consuls  resident 
here,  has  been  construed  not  to  mean  exclusive  jurisdiction,  and  that 
Congress  has  vested  power  in  inferior  courts  of  the  United  States  for 
the  trial  and  punishment  of  offenses  committed  by  such  foreign  agents 
in  violation  of  the  laws  of  the  country  or  the  laws  of  nations." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Cass,  Apr.  13,  1838.     MSS.  Inst.,  France. 

A  foreign  consul  is  liable  to  be  punished  to  the  same  extent  as  other 
foreign  residents  for  a  criminal  violation  of  the  local  law  of  the  country 
in  which  he  resides. 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Calderou  de  la  Barca,  Aug.  28,  1849.     MSS. 

Notes,  Spain. 

A  French  consul  in  the  United  States  is  by  treaty  privileged  from 
compulsory  detention  in  court  as  a  witness,  and  if  such  attendance  be 
unadvisedly  enforced,  he  should  be  discharged  and  a  due  apology  made 
to  the  French  Government. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  May  30,  1854;  June  8,  1854;  July  14, 
1854;  Sept.  11,  1854;  Dec.  13,  1854;  Jan.  18,  1855.  MSS.  Inst.,  France. 
See  supra,  ^  98. 

A  refusal  to  attend  for  examination,  without  obvious  good  reason, 
would  be  the  ground  for  application  to  the  French  Government  for  in- 
terference. 

Same  to  same,  Jan.  18,  1855.     Ibid.     See  aupra,  ^  98. 

"Without  discussing  the  question  whether  Portuguese  consuls  have 

all  the  rights  and  privileges  of  French  consuls  in  the  United  States, 

subsequently  to  the  consular  convention  of  February  L*3,  1853,  between 

this  country  and  France,  the  undersigned  will  consider  the  case  of  the 

Portuguese  consul  in  New  York  on  the  assumption  that  the  provisions 

of  that  convention  applied  to  him. 

776 


§  120.]  CONSULS.  [chap.  v. 

"  Ui)oii  this  assuinptiou  the  Portuguese  consul  would  uot  be  subjected 
to  compulsory  process  for  the  purpose  of  procuring  his  attendance  as  a 
witness  in  court,  unless  he  was  required  to  give  evidence  for  the  defend- 
ant in  a  criminal  prosecution." 

Mr.  Marcy,  Sec.   of  State,  to  Mr.  De  Figaniere,  Mar.  27,  1855.     MSS.  Notes, 
Portugal.     See  supra,  ^  9B. 

"A  consul  in  the  United  States  or  Great  Britain  is  subject  to  arrest  for 
debt,  whether  engaged  in  trade  or  not.  If  engaged  in  trade  he  becomes 
subject  to  all  the  local  remedies  as  between  mercantile  creditors  and 
mercantile  debtors.  Of  course  he  is  subject,  if  bankru^jt,  to  the  proc- 
ess of  bankruptcy  commission  in  invitum,  and  the  consequent  forced 
seizure  of  his  assets,  including  choses  in  action,  which  in  case  of  his 
legally  declared  bankruptcy  pass  to  the  bankruptcy  administrator  just 
as,  if  dead,  the  assets  would  pass  to  a  probate  administration.  Such 
being  the  course  of  proceedings  in  regard  to  an  involuntary  bankrupt, 
the  case  is  still  stronger  in  the  case  of  a  voluntary  bankrupt,  and  a 
petitioner  for  the  benefits  of  the  bankrupt  law.  He  becomes  subject  to 
the  local  jurisdiction  and  to  all  its  lawful  decrees  appertaining  to  the 
debts  and  credits  of  the  bankrupt,  including  the  enforced  surrender  of 
choses  in  action.  Such  are  the  principles  which  are  applicable  to  the 
case  which  you  have  presented  for  the  consideration  of  this  Depart- 
ment." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Fuller,  Mar.  23,  1861.     MSS.  Dom.  Let. 

A  consul  from  Hanover  carrying  on  trade  at  San  Francisco  is  not  en- 
titled to  exemption  from  testifying  in  a  San  Francisco  court. 

Mr.  Seward,  Sec.  of  State,  to  Judge  Hoffman,  July  22,  1862.     MSS.  Dom.  Let. 

When  a  consul  for  a  foreign  state  declines  to  appear  as  a  witness  bo- 
fore  the  courts  of  the  country,  when  duly  summoned,  his  exequatur  may 
be  revoked.  [In  this  case  he  was  not  privileged  by  treaty  from  testifying. 
The  question  whether  he  could  not  have  been  compelled  to  appear  by 
attachment  does  not  appear  to  have  been  raised.] 

Janssen's  case.  Senate  Ex.  Doc.  1,  spec.  sess.  U.  S.   Senate,  1867.     Report  of 
Mr.  Seward,  Sec.  of  State,  Mar.  28,  1867. 

In  Mr.  Seward's  report  in  this  case  the  opinion  of  Mr.  E.  P.  Smith, 
examiner  of  claims,  is  given  as  follows:  "This  Government  instructs 
its  consular  officers,  even  where,  as  in  France,  there  is  a  treaty  stip- 
ulation that  they  shall  not  be  compelled  to  appear  as  witnesses  be- 
fore the  courts,  that  it  is  nevertheless  their  duty,  on  invitation,  to  ap- 
I)ear  and  give  their  testimony,  unless  necessarily  prevented  ;  that  they 
have  no  right  on  account  of  their  official  position  or  disinclination,  or 
per.sonal  inconveniences,  to  refuse  compliance  with  such  invitation,  and 
that  a  refusal  without  good  cause  therefor  will  be  regarded  as  an  a<^t 
of  disrespect  toward  the  Government  within  whose  jurisdiction  the  cou- 
776 


CHAP,  v.]  PRIVILEGES    AS    TO    PROCESS.  [§  120. 

Sill  resides,  and  as  a  siiflieicut  reason   lor  liis  jrnioNal.     (Coiisiilar  Man- 
ual, sections  039  and  041.) 

"  TLe  United  States  expect  from  tliecoiKslilaroflicersoflbrei;L(n  powers 
the  same  respect  for  the  courts,  and  the  same  readiness  to  coutribnte 
their  testimouj%  when  invoked  in  the  administration  of  justice,  which 
we  enjoin  upon  our  own  oflicers.  Especially  is  this  expected  from  con- 
suls engaged  in  commerce,  as  was  Mr.  Janssen." 

"  It  is  settled  that  it  is  the  privilege  of  the  Government  of  Italy,  not 
1.  -^ely  the  personal  privilege  of  the  consul,  that  it«  consul  should  be 
impleaded  only  in  a  Federal  court.     *     *     * 

"The  Executive  has  no  capacity  to  control  or  influence  the  delibera 
tions  of  any  court,  State  or  Federal.  If  it  shall  be  made  to  appear  after 
the  consul  has  fairly  presented  his  case  and  prosecuted  his  defense  to 
the  court  of  last  resort  that  manifest  error  has  intervened  and  has  not 
been  corrected,  tt  may  then  become  the  duty  of  the  executive  Govern- 
ment to  consider  its  obligation  to  repair  the  wrong.  Meantime,  it  is  the 
duty  of  the  consul  to  avail  himself  of  the  means  of  defense  which  our 
jurisprudence  affords,  and  not  contribute  by  his  own  negligence  to  an 
erroneous  decision." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  de  Colobiano,  Dec.  22,  1869.     MSS.  Notes,  Italy. 

A  person  employed  as  interpreter  to  the  United  States  consulate  at 
Tangiers,  though  a  British  subject,  is  not  within  British  consular  ju.ris- 
diction  at  that  place,  "because  he  is  in  the  service  of  an  oflQcer  of  the 
United  States  accredited  to  the  Emperor  of  Morocco,  and  who,  as  such, 
according  to  the  usage  of  that  country,  is  entitled  to  privileges  of  ex- 
traterritoriality, one  of  which  is  the  exemption  of  his  servants,  includ- 
ing his  interpreter,  from  any  other  jurisdiction  than  his  own." 

Mr.  Fish,  Sec.  of  State,  to  SirE.  Thorutoii,  Apr.  o,  1872.     MSS.  Notes.  Gr.  Hril . 

"  On  the  14th  of  November,  1783,  before  this  Government  went  into 
operation  [a  consular  convention]  was  concluded  with  France.  Ther»' 
were,  however,  such  difficulties  attending  the  observance  of  its  stipula- 
tions on  our  part  that  its  repeal,  together  with  that  of  other  treaties 
with  that  country,  by  the  act  of  Congress  of  the  7th  of  .Inly,  17«is,  was 
not  regretted  here.  It  is  not  unlikely  that,  combined  with  other  causes, 
the  inconveniences  experienced  from  that  convention  disincHned  this 
Government  from  concluding  another  of  the  same  character  until  that 
of  the  4th  of  May,  1850,  with  New  Granada.  This  was  foHowed  by  ihe 
consular  convention  with  France  of  the  23d  of  February,  1853.  This 
last  instrument  had  scarcely  gone  into  eflect,  however,  when  an  un- 
lucky oversight  in  the  second  article,  stipulating  the  exemption  of  consuls 
from  arrest,  occasioned  much  trouble  and  some  anxiety  to  the  Depart 
ment.  You  will  notice  that  the  exemption  is  absolute  and  unf|ualilicd. 
The  sixth  amendment  to  the  Constitution  of  the  United  States,  however, 
provides  that  an  accused  party  shall  have  comjiulsory  process  f<u  ol) 


§  120.]  CONSULS.  [chap.  v. 

taining  witnesses  in  his  favor.  The  Mexican  consul  at  San  Francisco 
being  on  trial  for  a  violation  of  the  neutrality  act  of  1818,  required  the 
testimony  of  the  French  consul  for  his  defense.  The  latter  was  sub- 
poenaed accordingly,  but,  refusing  to  obey,  was  forcibly  required  to 
appear  in  court.  His  Government  complained  of  this  as  a  breach  of 
the  convention,  and  though  the  privilege  of  the  Mexican  consul  was 
claimed  to  be  superior  to  the  concession  in  that  instrument,  this  was 
not  acquiesced  in  by  the  French  Government,  which  required  their  flag, 
when  raised  to  the  mast-heads  of  certain  of  their  men-of-war  at  San 
Francisco,  to  be  saluted  as  a  reparation  for  the  alleged  indignity  to 
their  consul.  It  is,  of  course,  desirable  that  in  any  future  consular  con- 
vention no  such  oversight  should  be  committed.  Special  pains  have 
been  taken  to  avoid  it  in  the  consular  convention  with  Italy  of  the  8th 
February,  1868,  which  you  may  adopt  as  the  general  pattern  of  that 
which  you  are  authorized  to  conclude." 

Mr.  Fisli,  Sec.  of  State,  to  Mr.  Bassett,  Oct.  18,  1872.     MSS.  Inst.,  Hayti.    See 
more  fully,  supra,  §  98. 

"In  countries  with  which  the  United  States  have  treaty  stipulations 
providing  for  assistance  from  the  local  authorities,  consular  officers  are 
instructed  that  it  is  undesirable  to  invoke  such  interposition,  unless  it 
is  necessary  to  do  so.  In  cases  of  arrest  and  imprisonment,  they  will 
see,  if  possible,  that  both  the  place  of  confinement  and  the  treatment 
of  the  prisoners  are  such  as  would  be  regarded  in  the  United  States  as 
proper  and  humane.  If  a  request  for  assistance  is  refused,  the  consular 
officer  should  claim  all  the  rights  conferred  upon  him  by  treaty  or  con- 
vention, and  communicate  at  once  with  the  diplomatic  representative 
in  the  country,  if  there  be  one,  and  with  the  Department  of  State. 
When  such  requests  are  made  in  accordance  with  long-established 
usage,  he  should,  when  they  are  refused,  make  suitable  representations 
to  the  proper  local  authority,  and  likewise  advise  the  legation  and  the 
Department." 

Printed  Pers.  Inst.;  Dip.  Agents,  1885. 

The  exemption  of  consuls  in  the  United  States  from  suits  in  the  State 
courts  is  not  a  personal  privilege,  but  a  privilege  that  attaches  to  their 
official  character;  and  an  omission  to  plead  it  is  not  a  waiver  of  it. 
Davis  V.  Packard,  7  Pet.,  276. 

A  foreign  consul's  privilege  to  be  sued  only  in  a  Federal  court  is  not 
personal,  but  belongs  to  the  sovereign  whom  he  represents. 
Durand  v.  Halbacli,  1  Miles  (Phila.),  46. 

Though  not  entitled  to  represent  his  sovereign  in  a  country  where  the 
sovereign  has  an  ambassador,  a  consul  is  entitled  to  intervene  for  all 
subjects  of  that  power  interested. 

Robson  V.  The  Huntress,  2  Wall.,  jr.,  59. 

Under  the  act  of  18th  August,  1856  (11  Stat.,  56;  Rev.  Stat.,  §  1738), 
which  provides  that  "no  consular  officer  shall  exercise  diplomatic  func- 
tions in  any  case,  unless  expressly  authorized  by  the  President  so  to 

778 


CHAP,  v.]  PRIVILEGES    AS    TO    PROCESS.  [§  120. 

do,"  a  retiring  minister  cannot  install  a  consul  in  charge  of  the  lega- 
tion, nor  can  the  consul  receive  the  pay  provided  by  law  for  a  charge 
d'affaires. 

Otterbourg  v.  U.  S.,  5  C.  Cls.,  430. 

Both  circuit  and  district  courts  of  the  United  States  have  jurisdici  ion 
of  suits  brought  against  foreign  consuls. 

Saint  Luke'a  Hospital  v.  Barclay,  'S  Blatch.,  2i>^ ;  Grabam  c.  .Stuckeii,  4  blatcli., 
50  ;  Bixby  v.  Janssen,  G  Blatcb.,  315  ;  Gittings  r.  Crawlonl,  Taut-y'sDecis.,  1. 

While  State  courts  have  no  jurisdiction  of  suits  against  foreign  com 
suls,  they  may  assume  jurisdiction  of  suits  commenced  by  consuls. 
Sagory  v.  Wissmau,  2  Benedict,  240. 

Where  a  foreign  consul  files  a  bill  in  equity  in  a  State  court,  it  seems 
the  court  may  entertain  a  cross-bill. 
Ibid. 

It  has  been  held  that  a  foreign  consul  may  be  arrested  in  the  United 
States  circuit  court,  under  the  acts  of  February  28,  1839  (5  Stat.,  321), 
and  January  14, 1841  (5  Stat.,  410,  Eev.  Stat.,  ^  990),  and  the  New  York 
code  of  procedure,  in  a  suit  for  money  recovered  by  him  in  a  fiduciary 
capacity.  It  was  held  also  that  the  pendency  of  a  former  suit  in  a  State 
court  is  no  defense  to  a  second  suit  lor  the  same  cause  of  action  in 
the  Federal  court,  as  the  State  court  had  no  jurisdiction. 
McKay  v.  Garcia,  6  Benedict,  556. 

Consular  privilege  cannot  protect  a  consul  as  to  mercantile  matters 
engaged  in  by  him  independent  of  his  official  business. 

1  Kent,  44,  62  ;  2  Phill.,  335  ;  Arnold  v.  Ins.  Co.,  1  Jolins.,  363  ;  Griswold  r.  Ins. 
Co.,  IG  Jobns.,  346;  Indian  Chief,  1  C.  Rob.  (Adm.),  26. 

A  consul  is  not  a  public  minister,  nor  entitled  to  the  privileges  at- 
tached to  the  person  of  such  an  officer. 
1  Op.,  41,  Bradford,  1794. 

The  President  has  no  authority  to  interpose  in  a  suit  against  a  consul, 
though  it  be  of  a  public  nature  and  concern  the  consul's  Govennnent. 
A  consul  is  not  privileged  from  legal  process  by  the  law  of  nations,  nor 
is  the  French  consul-general  by  the  consular  convention  between  the 
United  States  and  France,  of  L788,  though  the  process  against  him  is 
limited  to  Federal  courts. 
1  Op.,  77,  Lee,  1797. 

Foreign  consuls  and  vice-consuls  are  not  public  ministers  within  the 
law  of  nations,  or  the  acts  of  Congress,  but  are  amenable  to  the  civil 
jurisdiction  of  the  courts.  But  they  are  bound  to  appear  only  in  tlu' 
Federal  courts,  the  State  courts  being  excluded  by  the  Constitution  and 
laws. 

1  Op.,  406,  Wilt,  1820. 

^  779 


§  120.]  CONSULS,  [chap.  v. 

Foreign  codsuIs  iu  the  Uuited  States  are  entitled  to  no  immunities 
not  possessed  by  foreigners  coming  into  this  country  in  a  private  ca- 
pacity, except  that  of  being  sued  and  prosecuted  exclusively  in  the 
Federal  courts.  And,  in  addition,  if  guilty  of  any  illegal  or  improper 
conduct,  they  are  liable  to  the  revocation  of  their  exequatur  and  to  be 
punished  according  to  our  laws  ;  or  to  be  sent  back  to  their  own  coun- 
try, at  the  discretion  of  the  Government. 

2  Op.,  725,  Butler,  1835. 

Foreign  consuls  are  subject  to  criminal  process  for  the  violation  of 
the  municipal  laws.  In  addition  to  the  ordinary  means  of  redress,  the 
President  may,  in  his  discretion,  withdraw  the  exequatur. 

7  Op.,  3G7,  Cushing,  1855. 

Citizens  of  the  United  States  who  hold  foreign  consulates  in  the 
United  States  are  not  exempt  from  jury  duty  or  service  in  the  militia 
by  the  law  of  nations. 

8  Op.,  169,  Cushing,  1856.     Adopted  in  Lawrence's  Wheaton,  (ed.  1863,)  430. 

"By  convention  with  Belgium,  Germany,  Netherlands,  and  Italy, 
the  consul  is  exempted  from  arrest,  except  for  crimes.  By  treaty  with 
Turkey  he  is  entitled  to  suitable  distinction  and  necessary  aid  and 
protection.  In  Muscat  he  enjoys  ihe  inviolability  of  a  diplomatic  offi- 
cer. In  Austria-Hungary  and  France  he  is  to  enjoy  personal  immuni- 
ties ;  but  in  France,  if  a  citizen  of  France,  or  owning  property  there,  or 
engaged  in  commerce,  he  can  claim  only  the  immunities  granted  to 
other  citizens  of  the  country  who  own  jiroperty,  or  to  merchants.  In 
Austria-Hungary,  it  engaging  in  business,  he  can  be  detained  only  for 
commercial  debts.  In  Colombia  the  consuls  of  the  United  States  liave 
no  diplomatic  character.  In  Great  Britain,  Liberia,  Netherlands  (as  to 
colonies),  Nicaragua,  and  Paraguay,  they  are  regarded  as  api^ointed  for 
the  protection  of  trade. 

"  Exemption  from  obligation  to  appear  as  a  witness  is  secured  abso- 
lutely by  convention  with  France  ;  and,  except  for  defense  of  persons 
charged  with  crime,  by  conventions  with  Austria-Hungary,  Belgium, 
Italy,  and  Salvador.  In  such  case  the  testimony  may  be  taken  in  writ- 
ing at  his  dwelling.  If  the  consul  claims  this  i3rivilege,  be  should,  in 
such  case,  offer  to  give  his  evidence  in  the  mode  prescribed  by  the  par- 
ticular convention,  and  should  throw  no  im])edimeut  in  the  way  of  tlie 
proper  administration  of  justice  in  the  country  of  his  official  residence. 

•'  When  the  consul  is  not  a  citizen  of  the  country  in  whicli  the  con- 
sulate is  situated,  and  does  not  own  real  estate  therein,  and  is  not  en- 
gaged in  business  therein,  he  is  secured  against  the  liability  to  taxation 
by  treaties  or  conventions  with  Austria-Hungary,  Belgium,  Bolivia, 
Denmark,  Ecuador,  France,  Germany,  Hayti,  Italy,  the  Netherlands 
(and  colonies),  Peru,  Salvador,  Colombia,  and  Mexico;  and  in  Ger- 
many the  ofiicial  income  of  a  consul  is  not  taxable,  but  in  the  Do- 
minican Republic,  the  Orange  Free  State,  Persia,  Portugal,  the  Haw- 
aiian Islands,  Russia,  and  Switzerland,  if  they  engage  in  business  they 
are  subject  to  the  laws  of  the  country.  And,  in  general,  if  a  consular 
officer  engages  iu  business  or  owns  property  iu  the  country  of  his  offi- 
cial residence,  he  cannot  claim  other  exemptions  in  respect  of  such  busi- 

780 


CHAP,  v.]  .OTHER  I'lii \  ILKGES.  [§  1 '-Al- 

ness or  property  than  are  accorded  to  citi/ciis  or  subjects  ttl'  the  coiin- 

"  If  not  citizens  of  the  country  oi"  their  consuhir  residence,  or  domi- 
ciled at  tlie  time  of  the  api)oiiitnient  in  it,  tlie  e\(  ini)tion  Croui  military 
binetinj>s  or  service  is  secured  by  conventions  with  Austria- 11  unj,Mry, 
Belj;iuni,  France,  Germany,  iS'^etherlands,  and  Jtaly  ;  and  the  exemption 
from  all  public  service  is  secured  by  treatses  with  Denmark,  Gerniany, 
Peru,  San  Salvador,  Colombia  (New  Granada),  and  ^Mexico.  Jn  Colom- 
bia, the  exemption  also  extends  to  officers,  secretaries,  and  attaches." 
U.  S.  Cons.  Reg.,  1881,  U  86 #. 

IX.   OTHER  PRIVILEGES. 
§  1131. 

"  There  is  believed  to  be  no  difference  between  the  death  of  a  consul 
and  that  of  any  other  private  foreigner  in  respect  to  his  effects.  The 
consular  oftice  is  not  known  to  create  any.  Upon  the  death  of  any  for- 
eigner, whether  consul  or  not,  if  he  has  left  no  family  nor  relations  to 
take  charge  of  his  estate  at  the  place  of  his  death,  a  practice  i)revail8 
to  allow  the  consul  of  the  country  of  the  deceased  to  put  his  ollicial  seal 
upon  the  effects  of  the  deceased,  until  the  local  law  oi)erates  upon  them 
by  a  grant  of  administration,  or  if  no  such  administration  be  granted, 
for  the  purpose  of  transmission  to  the  kindred  of  the  deceased." 

Mr.  Cliiy,  Sec.  of  State,  to  Mr.  Vaughan,  Nov.  12, 1827.     MSS.  Notes,  For.  Leg. 

How  far  a  superseded  consul  can  be  compelled  to  deliver  up  the  office 
paj)ers  to  his  successor  is  a  question  for  the  local  judiciary. 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Tacon,  Jnne  8, 183L  MSS.  Notes,  For. 
Leg.  See  Mr.  Livingston  to  Mr.  Tacon,  June  16, 1831  ;  ibid.  See  supra,  ^ 
98#. 

The  Government  of  the  United  States  will  insist  u])on  reparation  for 
any  personal  injustice  inflicted  on  one  of  its  consuls  in  a  foreign  state. 
Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Hunter,  Apr.  11, 1837.     MSS.  Inst.,  Brazil. 
Mr.  Upshur,  Sec.  of  State,  to  Mr.  Proffit,  Aug.  1,  1843 ;  ibid. 

"  Ministers  and  consuls  of  foreign  nations  are  the  means  and  agents 
of  communication  between  us  and  those  nations,  and  it  is  of  the  utmost 
importance  that  while  residing  in  the  country  they  should  feel  a  per- 
fect security  so  long  as  they  faithfully  discharge  their  respective  duties 
and  are  guilty  of  no  violation  of  our  laws.  This  is  the  admitted  law  of 
nations,  and  no  country  has  a  deeper  interest  in  maintaining  it  thanthe 
United  States.  Our  commerce  spreads  over  every  sea,  and  visits  every 
clime,  and  our  ministers  and  consuls  are  appointed  to  protect  the  inter- 
ests of  that  commerce,  as  well  as  to  guard  the  jteace  of  the  country 
and  maintain  the  honor  of  its  flag.  But  hov,-  can  they  discharge  these 
duties  unless  they  be  themselves  protected,  and.  if  i>rotected,  it  must 
be  by  the  laws  of  the  country  in  which  they  reside.    And  what  is  due 

761 


§  121.]  CONSULS.  ,  [CHAP.  V. 

to  our  own  public  functionaries  residing  in  foreign  nations  is  exactly  the 
measure  of  what  is  due  to  the  functionaries  of  other  Governments  re- 
siding here.  As  in  war  the  bearers  of  flags  of  truce  are  sacred,  or  else 
wars  would  be  interminable,  so  in  peace  embassadors,  public  ministers, 
and  consuls  charged  with  friendly  national  intercourse  are  objects  of 
especial  respect  and  protection,  each  according  to  the  rights  belonging 
to  his  rank  and  station.  In  view  of  these  important  j)riuciples,  it  is 
with  deep  mortification  and  regret  I  announce  to  you  that,  during  the 
excitement  growing  out  of  the  executions  at  Havana,  the  office  of  Her 
Catholic  Majesty's  consul  at  New  Orleans  was  assailed  by  a  mob,  his 
property  destroyed,  the  Spanish  flag  found  in  the  office  carried  off  and 
torn  in  j)ieces,  and  he  himself  induced  to  flee  for  his  personal  safety, 
which  he  supposed  to  be  in  danger.  On  receiving  intelligence  of  these 
events,  I  forthwith  directed  the  attorney  of  the  United  States,  residing 
at  New  Orleans,  to  inquire  into  the  facts  and  the  extent  of  the  pecu- 
niary loss  sustained  by  the  consul,  with  the  intention  of  laying  them 
before  you,  that  you  might  make  provision  for  such  indemnity  to  him 
as  a  just  regard  for  the  honor  of  the  nation  and  the  respect  which  is 
due  to  a  friendly  power  might,  in  your  judgment,  seem  to  require.  The 
correspondence  upon  this  subject  between  the  Secretary  of  State  and 
Her  Catholic  Majesty's  minister  plenipotentiary  is  herewith  trans- 
mitted. 

"  The  occurrence  at  New  Orleans  has  led  me  to  give  my  attention  to 
the  state  of  our  laws  in  regard  to  foreign  embassadors,  ministers,  and 
consuls. 

"  I  think  the  legislation  of  the  country  is  deficient  in  not  providing 
sufficiently  either  for  the  protection  or  the  punishment  of  consuls.  I 
therefore  recommend  the  subject  to  the  consideration  of  Congress." 

President  Fillmore,  Second  Annual  Message,  1851.    (Mr.  Webster,  Sec.  of  State. ) 
See,  as  to  tliis  case,  infra,  §  226. 

In  extreme  cases,  where  the  privileges  of  a  consulate  are  invaded, 
the  flag  of  the  United  States  may  be  struck  by  the  consul,  and  all 
friendly  intercourse  with  the  authorities  of  the  residence  suspended. 

Mr.  Webster  to  Mr.  McCauley,  April  20,  1852.     MSS.  Inst.,  Barb.  Powers. 

As  to  action  of  French  Government  in  this  respect,  see  supra,  $  98 ;  infra,  ^  315. 

"The  consuls  of  the  United  States  are  authorized  and  requested  to 
act  as  administrators  on  the  estates  of  all  citizens  of  the  United  States 
dying  intestate  in  foreign  countries  and  leaving  no  legal  representative 
or  partner  in  trade.  Indeed,  this  is  one  of  the  most  sacred  and  respon- 
sible trusts  imposed  by  their  office,  and  in  this  respect  they  directly 
represent  their  Government  in  protecting  the  rights  and  interests  of 
the  representatives  of  deceased  citizens.  The  consul  of  the  United 
States,  therefore,  was  the  only  person  who  could  legally  touch  the  prop- 
erty left  by  the  deceased  Parsons  j  it  was  his  duty  to  deposit  the  pro- 
782 


CHAP,  v.]  OTHER    PRIVILEGES.  [§121. 

ceeds  thereof  in  the  Treasury  of  the  United  States,  there  to  await  the 
decision  of  the  proper  authorities  as  to  its  final  disposition." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Aspinwall,  Aug.  21, 1855.     MSS.  Doru.  Let. 

For  a  consul  to  insert  into  his  official  bag  and  cover  with  his  official 
seal  the  correspondence  of  the  enemies  of  a  bellif^orcnt  i)(>wer  with 
wliich  his  own  Government  is  at  peace,  is  a  grave  breach  of  duty  to- 
wards his  own  Government  and  that  of  the  offended  belligerent. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams  (quoting  Earl  Russell),  Oct.  22,  1861. 
MSS.  Inst.  Gr.  Brit.  Dip.  Corr.,  1861.  This  instruction  is  given  in  full, 
supra,  §  119. 

Insults  by  a  foreign  Government  to  a  consul,  or  encroachments  by 
it  on  his  rights,  will  justify  a  demand  that  in  addition  to  otlier  redress, 
"  the  flag  of  the  United  States  shall  be  honored  with  a  salute." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Harvey,  Nov.  29,  18G1.  MSS.  Inet.,  Portugal. 
Infra,  §  315. 

The  search  of  the  person  of  a  foreign  consul,  his  imprisonment,  and 
the  carrying  off  of  his  archives  by  the  general  in  command  of  the  United 
States  Army  in  a  captured  city,  is  a  violation  of  the  law  of  nations  for 
which  the  Government  of  the  United  States  considers  itself  bound  to 
apologize,  and  to  give  all  other  suitable  redress. 

Mr.  Seward  to  Mr.  Van  Limburg,  June  3,  1862.  MSS.  Notes,  Netherlands. 
Same  to  same,  Aug.  20, 1862 ;  Sept.  4,  1862, 

"  So  far  as  the  protection  of  this  Government  may  be  requisite  to  en- 
able a  consular  agent,  Avhose  appointment  may  have  been  approved  by 
the  local  authorities,  to  discharge  his  official  duties,  that  ])rotection  will 
be  given.  The  United  States,  however,  will  not  undertake  to  guarantee 
the  business  or  safety  of  any  alien  in  a  foreign  country,  who,  as  he  owes 
them  no  lawful  allegiance,  can  not  on  that  account  lawfully  claim  pro- 
tection from  them." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Mathews,  Oct.  2,  1872.   MSS.  Inet.,  Barb.  Powers. 

"It  is  proper  to  say  in  reply  that  the  subject  of  the  settlement  of  the 
estates  of  others  than  citizens  of  the  United  States,  deceased  abroad, 
is  one  with  which  the  Department  has  no  oflBcial  concern ;  and  where  a 
consular  officer  is  employed  and  empowered  by  the  parties  interested 
and  he  undertakes  to  act  for  them,  he  does  so  wholly  in  liis  individual 
capacity  and  not  as  an  officer  of  the  Government.  While  the  Depart- 
ment is  frequently  asked  to  give  the  names  of  its  officers  with  a  view  to 
their  being  employed  in  such  a  settlement,  it  does  not  undertake,  in 
complying  with  these  requests,  to  assume  any  responsibility  for  tin' 
manner  in  which  the  business  is  performed.  Should  it  happen  that 
delay  or  mismanagement  ensue,  proceedings  must  be  taken,  if  at  all, 
against  him  in  his  personal  and  not  in  his  official  capacity,  the  bond  of 
such  an  officer  holding  him  only  for  default  towards  the  Government." 
Mr.  Davis,  Asst.  Sec.  of  State,  to  Mr.  Marvin,  Mar.  5,  1873.  MSS.  Dom.  Let. 
See  in/ra,  $  123.  ^^ 


§  121.]  CONSULS.  [chap.  v. 

"  Your  dispatch  No.  99,  of  the  27th  ultimo,  relative  to  the  raising  of 
the  consular  iiag  in  Mexico,  has  been  received.  This  is  a  matter  sub- 
ject to  municipal  law,  unless  a  privilege  in  respect  to  it  should  have 
been  granted  by  treaty.  We  have  no  other  privilege  than  that  of 
equality  with  other  nations,  which  will  always  be  insisted  on.  It  ap- 
pears, however,  that  the  authorities  at  the  city  of  Mexico  have  over- 
looked a  strict  observance  of  the  law  by  allowing  consuls  to  display 
their  flags  on  holidays  of  their  respective  nations.  This,  it  seems  to 
me,  is  as  much  as  may  be  needed.  If,  however,  they  should  at  any 
time  think  proper  to  withdraw  this  indulgence,  it  is  clear  that  we  can- 
not insist  upon  its  continuance  as  a  matter  of  right." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  Feb.  16,  1874.  MSS.  Inst.,  Mex.  ;  For. 
Eel.,  1874. 

As  a  consul  by  international  law  enjoys  no  privilege  which  puts  him 
upon  a  distinctive  footling  in  regard  to  his  private  debts,  his  creditors 
cannot  expect  any  j)eculiar  process  for  their  recovery. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Schlozer,  Dec.  11,  1874.     MSS.  Notes,  Germ. 

"  The  power  to  take  the  acknowledgment  of  deeds  and  other  instru- 
ments by  consuls  of  the  United  States  is  a  power  conferred  upon  them 
by  State  legislation,  and  is  wholly  outside  of  their  functions  as  consuls  or 
officers  of  the  General  Government. 

"  The  recording  acts  of  the  several  States  are  understood  to  differ  as 
to  their  requirements  and  forms  of  certificates.  It  would  be  assuming 
a  responsibility  which  might  be  criticised,  and  which  might  lead  to 
mistakes  resulting  in  serious  consequences,  were  this  Department  to 
undertake  to  instruct  its  officers  in  the  discharge  of  powers  which  it 
does  not  object  to  their  performance  for  the  convenience  of  the  public, 
but  which  are  imposed  or  conferred  upon  them  by  the  legislation  of 
several  of  the  States,  each  one  prescribing  at  its  pleasure  its  own  forms 
and  requirements  of  proof  or  idtintiflcation.  This  Department  does  not 
profess  to  be  informed  as  to  the  various  requirements,  whether  by  stat- 
ute or  possibly  resulting  from  judicial  decisions  in  the  several  States. 

"  It  is  therefore  deemed  most  advisable  to  leave  the  execution  of  the 
power  couferred  by  State  legislation  on  persons  holding  diplomatic  or 
consular  functions  under  the  General  Government  to  the  special  instruc- 
tions which  may  be  given  by  them  Avho  desire  to  avail  of  their  services." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Weeks,  Jan.  21,  1875.     MSS.  Dom.  Let. 

"  In  the  case  of  American  citizens  dying  abroad  it  is  made  by  law 
the  duty  of  the  United  States  consul  within  whose  jurisdiction  such 
death  occurs  to  take  charge  of  the  effects  of  the  deceased,  cause  an 
inventory  of  such  effects  to  be  taken,  and  dispose  of  any  that  may  be 
deemed  perishable  by  sale  at  public  auction,  and  the  proceeds  of  which, 
together  with  all  other  property  and  moneys  of  the  deceased,  he  is  to 
hold  subject  to  the  demand  of  the  legal  representatives  of  the  deceased. 
784 


CHAP,  v.]  OTHER    PRIVILEGES.  [§121. 

In  case  such  representatives  do  not  appear  and  demand  the  estate 
within  a  year,  the  consul  is  required  to  transmit  the  effects  to  the 
Treasury  Department,  there  to  await  final  distribution  to  the  jtartics 
entitled  to  receive  them. 

"  The  Department  possesses  no  discretionary  power  to  dispense  witli 
these  requirements  of  the  statute,  and  it  will,  therefore,  be  necessary 
for  some  person  to  administer  on  the  estate.  Upon  receiving,'  a  copy  of 
such  letters  of  administration,  duly  authenticated,  the  Department  will 
give  the  necessary  instructions  to  the  consul  at  Matanzas  to  forward 
the  effects  of  the  late  Mr.  Cbadwick  directly  to  the  address  of  his  lejjal 
representatives." 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Chadwick,  Aug.  19,  IH7.').     ilSS. 
Dom.  Let. 

Official  communications  to  consuls  from  other  Departments  of  (lov- 
ernment  must  be  sent  through  the  Secretary  of  State. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Boutwell,  Jan.  21,  1876.     MSS.  Doin.  Let. 

"When  a  citizen  of  the  United  States,  not  a  seaman,  dies  abroa<l 
without  leaving  a  will,  it  is  made  the  duty  of  a  consul  to  take  charge 
of  any  property  he  may  leave  in  the  consular  district,  and,  after  ])aying 
the  debts  of  the  deceased  contracted  there,  to  send  the  proceeds  of  the 
property  at  the  expiration  of  a  year  to  the  Treasury  of  the  United 
States,  there  to  be  held  in  trust  for  the  legal  representative.  In  case, 
however,  a  legal  representative  shall  appear  and  demand  the  effects, 
the  consul  is  required  to  deliver  the  property  to  him,  after  deducting 
the  lawful  fees.  The  statute  on  this  subject  may  be  found  in  section 
1709  of  the  Eevised  Statutes  of  the  United  States." 

Mr.  Cadwalader,  Asst.  Sec.  of  State,  to  Mrs.  Hopkins,  Mar.  27, 1876.     MSS.  Dom. 
Let. 

"Your  dispatch,  No.  112,  of  the  28th  January  last,  has  been  received. 
It  relates  to  the  authority  of  the  consul  of  the  United  States  at  Iquique 
to  grant  clearances  to  American  vessels.  Your  letter  to  him  upon  the 
subject  is  in  general  approved,  jSTo  consul,  pursuant  to  our  law  or 
regulations,  has  the  right  to  grant  a  clearance  to  any  Anieriean  vessel, 
even  if  his  post  is  at  a  port  conquered  and  ])ossessed  by  the  enemy  of 
the  country  from  whose  Government  he  may  have  received  his  exequat  ni . 
It  is  the  exclusive  province  of  the  belligerent  authority  for  the  time 
being — civil,  military,  or  naval — to  grant  such  clearances,  and  the  con- 
sul, as  is  required  in  time  of  peace,  should  not  deliver  the  vessel's 
papers  until  the  clearance  shall  have  been  presented  to  him  by  the 
master.  The  consul's  course  is  not  to  be  governed  or  inllueneed  by  the 
components  of  the  cargo  of  the  vessel.  If  these,  according  to  the  exist- 
ing authority,  may  lawfully  be  exi)orted,  the  consul  eannot  proj.erly 
gainsay  that  opinion." 

Mr.  Evaxts,  Sec.  of  State,  to  Mr.  CLristiancy,  Mar.  2,  1880.     MSS.  Inst.,  Pern; 
included  in  documents  accompanying  President's  message,  Jan.  26,  1882. 

S.  Mis.  102— VOL.  I 50  '^^ 


§  121.]  CONSULS.  [chap.  v. 

The  right  of  consular  agents  of  Austria  to  hoist  their  national  flag  in 
l)laces  where  their  sovereign  has  no  legation  is  established  by  the  fourth 
article  of  the  consular  convention  of  July,  1870,  between  Austria  and 
the  dnited  States,  and  this  right  cannot  be  impaired  by  any  municipal 
ordinance  prohibiting  the  exhibition  of  flags. 

Mr.  Frelingbuysen,  Sec.  of  State,  to  Gov.  Pattison,  Aug.  27,  1884.     MSS.  Dom. 
Let. 

''No  consular  officers  in  any  country  have  the  right  or  favor  of  free 
entry  for  personal  goods;  and  if,  as  Mr.  Heap  states,  the  Ottoman  law 
exempts  from  duty  articles  for  the  personal  use  and  consumjition  of 
consuls,  it  is  a  piece  of  generosity  and  courtesy  quite  unknown  to  other 
nations,  and  which  we  could  not  ask  for  and  do  not  grant  ourselves." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cos,  Nov.  6,  1885.     MSS.  Inst.,  Turkey. 
As  to  diplomatic  exemptions  in  tills  resj)ect,  see  supra,  $  93a. 

The  status  of  consuls  as  to  marriages  in  foreign  lands  is  considered 
in  future  sections. 

Infra,  H  262  Jf. 

It  is  not  a  consular  function  to  authenticate  the  laws  of  a  foreign 
state,  and  the  certificate  of  a  consul  to  that  effect  is  not  evidence. 
Churcli  V.  Hubbart,  2  Crauch,  187. 

While  consuls,  when  there  is  no  other  representation,  and  when 
duly  recognized,  are  competent  parties  to  assert  or  defend  the  rights 
of  property  of  their  fellow-citizens  or  subjects  in  a  court  of  admiralty 
without  special  procuration  they  cannot  receive  actual  restitution  of 
the  property  in  controversy  without  a  special  authority.  But  a  vice- 
consul,  duly  recognized  by  our  Government,  is  a  competent  party 
to  assert  or  defend  the  rights  of  property  of  the  individuals  of  his 
nation,  in  any  court  having  jurisdiction  of  causes  affected  by  the  appli- 
cation of  international  law ;  in  this  case  a  court  of  admiralty. 
The  Bello  Corrunes,  6  Wheat.,  152. 

A  consul  cannot,  by  virtue  of  his  office  merely,  interpose  in  a  case 
of  prize,  and  make  claim  for  the  restoration  of  captured  property  on 
the  ground  that  the  capture  was  made  in  neutral  waters. 

The  Lilla,  2  Sprague,  177. 

But  in  other  cases  the  consul  of  a  nation  may  claim  on  behalf  of  its 
subjects,  in  the  absence  of  any  authorized  agent. 
The  London  Packet,  1  Mason,  14. 

A  consul,  in  an  enemy's  country,  has  no  authority  by  virtue  of  his 
office  to  grant  a  license  or  permit  which  will  have  the  effect  of  exempt- 
ing a  vessel  of  the  enemy  from  capture  and  confiscation. 

Rogers  r.  The  Aniado,  1  Newberry,  Adm.,  400. 

786 


CHAP,  v.]  OTHER    PRIVILEGES.  [§121- 

Unless  by  statute  or  treaty  a  foreign  consul  can  exercise  no  ujuui- 
cipal  jurisdiction  in  the  United  States. 

Aubrey,  in  re.,  26  Fed.  Rep.,  848. 

In  a  suit  brought  aoainst  a  <'onsul-fceneral  of  France,  for  transac- 
tions of  a  public  nature,  in  which  he  acted  as  the  commercial  agent  of 
his  country,  the  President  has  no  constitutional  right  to  interfere,  but 
must  leave  the  matter  to  the  tribunals  of  justice. 

1  Op.,  77,  Lee,  1797. 

In  the  instructions  of  a  consul  of  the  United  States  to  Tunis,  there 
occurred  the  following  :  "  On  your  way  to  Tunis  (perhaps  at  Malaga  or 
]\Iarseilles)  you  may  probably  devise  means  for  the  liberation  of  <nir 
unfortunate  captives  at  Algiers.  *  *  *  Should  you  tiud  a  suitable 
channel,  therefore,  through  which  you  can  negotiate  their  immediate 
release,  you  are  authorized  to  go  as  far  as  three  thousand  dollars  a  man ; 
but  a  less  sum  ma3'  jjrobably  efiect  the  object.  *  *  »  If  success 
should  attend  your  eflbrts  you  will  draw  upon  this  Department  for  the 
necessary  funds  for  paying  their  ransoms,  and  providing  for  their  com- 
fortable return  to  their  country  and  friends."  The  consul  employed  an 
agent  at  Cadiz  for  a  certain  hire  and  a  promise  of  additional  pay  in  case 
of  success,  to  endeavor  to  efiect  the  release  of  the  captives,  and  then 
drew  bills  on  the  Department  of  State,  in  favor  of  a  merchant  at  Gib- 
raltar, for  the  compensation  stipulated  to  be  paid,  etc. :  It  was  advised 
that  the  employment  of  an  agent  was  justified  under  the  power.  Objec- 
tion, however,  was  made  to  the  manner  of  the  employment,  as  being 
inconsistent  with  the  true  meaning  of  the  instructions;  and,  after  a 
consideration  of  all  the  proceedings,  which  were  much  complicated  by 
several  matters  somewhat  foreign  to  the  main  business,  it  was  advised 
that  an  application  to  Congress  would  be  necessary. 
1  Op.,  196,  Rush,  1816. 

The  rights  and  privileges  of  consuls  rest  on  the  general  law  of  na- 
tions and  on  treaty. 

1  Op.,  378,  Berrien,  1830. 

Consuls  cannot  intervene  as  of  right  in  the  administration  of  a  de- 
cedent's estate,  except  by  way  of  surveillance. 

8  Op.,  98,  Cusliing,  1856. 

The  United  States  are  not  bound  by  the  treaty  with  Peru  to  i)ay  a 
consul  of  that  country  the  value  of  property  belonging  to  a  tleceased 
Peruvian,  which  the  consul  was  entitled  to  administer,  but  which  has 
been  unjustly  detained  and  administered  by  a  local  public  administra- 
tor.    The  consul  has  a  remedy  in  the  courts. 

9  Op.,  383,  Bliick,  1859. 

787 


§  121.]  CONSULS.  [chap.  v. 

The  certification  of  the  official  character  of  a  foreign  notary  is  not 
such  a  notarial  act  as  a  consul  of  the  United  States  is  required  to  per- 
form. 

12  Op.,  1,  Stanbery,  1866. 

As  to  consular  courts,  see  infra,  §  125. 

As  to  consular  fees,  see  Schuyler's  Am.  Diplom.,  76. 

Under  Article  I,  section  9,  of  the  Constitution  of  the  Dnited  States, 
"  no  person  holding  any  office  of  profit  or  trust  under  them,  shall,  with- 
out the  consent  of  the  Congress,  accept  of  any  present,  emolument, 
office,  or  title  of  any  kind  whatever  from  any  king,  prince,  or  foreign 
state."    This  applies  to  consuls  and  diplomatic  agents. 

See  supra,  $  100. 

"In  the  early  Middle  Ages,  and  before  the  establishment  of  more  or 
less  permanent  legations,  consuls  appear  to  have  enjoyed  the  right  of 
extraterritorality,  and  the  privileges  and  immunities  now  accorded  to 
diplomatic  representatives.  In  non-Christian  and  semi-civilized  coun- 
tries these  j)rivileges  have  to  a  large  degree  been  preserved  to  them, 
and  they  have  the  sanction  both  of  treaty  and  usage.  Upon  the  estab- 
lishment of  legations,  however,  the  exemptions  and  immunities  granted 
to  consuls  came  to  be  regarded  as  a  limitation  of  the  territorial  rights 
of  the  sovereign,  and  they  have  in  the  process  of  time  been  restricted 
to  such  as  are  necessarily  incident  to  the  consular  office,  or  have  been 
provided  for  by  treaty,  or  are  supported  by  long  established  custom,  or 
the  particular  laws  of  the  place.  A  consular  officer  in  civilized  coun- 
tries now  has,  under  public  law,  no  acknowledged  representative  or 
diplomatic  character  as  regards  the  country  to  which  he  is  accredited. 
He  has,  however,  a  certain  representative  character  as  afiecting  the 
commercial  interests  of  the  country  from  which  he  receives  his  appoint- 
ment ;  and  there  may  be  circumstances,  as,  for  example,  in  the  absence 
of  a  diplomatic  representative,  which,  apart  from  usage,  make  it  proper 
for  him  to  address  the  local  government  upon  subjects  which  relate  to 
the  duties  and  rights  of  his  office,  and  which  are  usually  dealt  with 
through  a  legation. 

"'Although  consuls  have  no  right  to  claim  the  privileges  and  immuni- 
ties of  diplomatic  representatives,  they  are  under  the  special  protection 
of  international  law,  and  are  regarded  as  the  officers  both  of  the  state 
which  appoints  them  and  the  state  which  receives  them.  The  extent 
of  their  authority  is  derived  from  their  commission  and  their  exequatur; 
and  it  is  believed  that  the  granting  of  the  latter  instrument,  without 
express  restrictions,  confers  upon  the  consul  all  rights  and  privileges 
necessary  to  the  performance  of  the  duties  of  the  consular  office  ;  and, 
generally,  a  consul  may  claim  for  himself  and  his  office  not  only  such 
rights  and  ijrivileges  as  have  been  conceded  by  treaty,  but  also  such  as 
have  the  sanction  of  custom  and  local  law,  and  have  been  enjoyed  by 
his  predecessors  or  by  consuls  of  other  nations,  unless  a  formal  notice 
has  been  given  that  they  will  not  be  extended  to  him. 

"'A  consul  may  place  the  arms  of  his  Government  over  his  doors.  Per- 
mission to  display  the  national  flag  is  not  a  matter  of  right,  though  it 
is  usually  accorded,  and  it  is  often  provided  for  by  treaty.  He  may  claim 
inviolability  for  the  archives  and  official  property  of  his  office,  and  their 
exemption  from  seizure  or  examination.  He  is  protected  from  the  bil- 
leting of  soldiers  in  the  consular  residence,  and  he  may  claim  exemption 
from  service  on  juries  and  in  the  militia,  and  from  other  public  duties. 

788 


CHAP,  v.]  OTHER    PRIVILEGES.  [§  121. 

It  is  probable,  however  that  nil  these  privile^u-s  could  not  Ite  elaimed 
tor  subordinate  officers,  especially  for  thost;  who  are  citizens  or  subjects 
of  the  foreign  state.  The  jurisdiction  allowed  to  consuls  in  civilized 
countries  over  disputes  between  their  countrymen  is  voluntary  and  in 
the  nature  of  arbitration,  and  it  relates  more  especially  to  matters  of 
trade  and  commerce.  A  consul  is,  however,  under  public  law,  .subject 
to  the  payment  of  taxes  and  municipal  imposts  and  duties  on  his  prop- 
erty in  the  country  or  on  his  trade,  and  generally  to  the  civil  and  crimi- 
nal jurisdiction  of  the  country  in  which  he  resides.  It  is  probable,  if 
he  does  not  engage  in  business,  and  does  not  own  real  estate,  that  be 
would  not  be  subject  to  arrest  or  incarceration  except  on  a  criminal 
charge,  and  in  the  case  of  a  commission  of  a  crime  he  may  either  be 
punished  by  the  local  laws  or  sent  back  to  his  own  country.  In  the 
absence  of  a  diplomatic  representative,  a  consul  doubtless  has  the  right 
of  access  to  the  authorities  of  the  state  in  all  matters  appertaining  to 
his  office. 

"  The  privileges  of  a  consul  who  engages  in  business  in  the  country  of 
his  official  residence  are,  under  international  law,  more  restricted,  es- 
pecially if  he  is  a  subject  or  citizen  of  the  foreign  state.  If  his  exequa- 
tur has  been  granted  without  limitations,  he  may  claim  the  privileges 
and  exemptions  that  are  necessary  to  the  performance  of  the  duties  of 
the  office  ;  but  in  all  that  concerns  his  personal  status  or  his  status  as 
a  merchant,  it  is  doubtful  that  he  can  claim  any  rights  or  ])rivileges  not 
conceded  to  other  subjects  or  citizens  of  the  state. 

"  In  Mohammedan  and  semi-civilized  countries  the  rights  of  extrater- 
ritoriality have  been  largely  preserved,  and  have  generally  been  con- 
firmed by  treaties  to  consular  officers.  To  a  great  degree  they  enjoy 
the  immunities  of  diplomatic  representatives,  besides  certain  preroga- 
tives of  jurisdiction,  together  with  the  right  of  worship,  and,  to  some 
extent,  the  right  of  asylum. 

"These  immunities  extend  to  an  exemption  from  both  the  civil  and 
criminal  jurisdiction  of  the  country  to  which  they  are  sent,  and  protect 
their  household  and  the  effects  covered  by  the  consular  residence. 
Their  personal  property  is  exemi)t  from  taxation,  though  it  may  be 
otherwise  with  real  estate  or  movables  not  connected  with  the  consul- 
ate. Generally  they  are  exempt  from  all  personal  impositions  that 
arise  from  the  character  or  quality  of  a  subject  or  citizen  of  the  country. 

"  The  consular  jurisdiction  in  these  countries  is  both  civil  and  <uimi- 
nal,  and  has  in  most  cases  been  provided  for  by  the  stipulations  of 
treaties.  The  extent  of  its  exercise,  as  well  as  the  penalties  and  i>un- 
ishments  to  be  enforced,  depend  generally  ui)on  the  hiws  of  his  own 
country  to  the  exclusion  of  the  jurisdiction  of  all  local  tribunals. 

"Consuls  have  no  claim,  under  international  law,  to  any  foreign  cere- 
monial, and  no  right  of  precedence  except  among  themselves,  and  in 
their  relation  to  the  military  and  naval  officers  of  their  own  country. 
This  precedence,  as  to  officers  of  the  same  grade  in  the  consular  body 
of  the  place,  depends  upon  the  date  of  the  respective  execpiaturs. 

"Consuls  must  bear  in  mind  that  in  the  following  abstfact  it  is  im- 
possible to  do  more  than  allude  in  a  general  way  to  the  rights  and  priv- 
leges  secured  by  treaties.  The  several  consular  treaties  and  conven- 
tions with  other  powers  may  be  found  in  Api)endix  No.  1,  and  in  each 
case  the  consul  must  look  there  for  more  detailed  information.  It  is 
also  possible  that  more  extended  rights  may  have  been  granted  to  con- 
suls of  other  nations,  and  that  the  officers  of  the  United  States  may  be 
entitled  to  claim  them  under  the  clause  known  as  '  the  most  favored 

789 


§  121.]  CONSULS.  [chap.  v. 

iiatiou  clause,'  iu  a  treaty  with  the  Uuited  States.  This  right  is  secured 
by  treaties  with  the  Argentine  Coufederatiou,  xlustria-Huugary,  Bolivia, 
Colombia,  Costa  E,ica,  the  Domiiiicau  llepublic,  Denmark,  Ecuador, 
France,  Germany,  Hawaiian  Inlands,  Hayti,  Honduras,  Italy,  Mada- 
gascar, Morocco,  Mexico,  Nicaragua,  Netherlands  (and  colonies),  Orange 
Free  State,  Paraguay,  Persia,  Peru,  Portugal,  Prussia,  Russia,  San 
Salvador,  Spain,  Swiss  Confederation,  and  Tripoli.  The  Department 
must  necessarily  trust  to  the  discretion  of  the  consul  on  the  one  hand, 
not* to  permit  his  rights  to  be  invaded  without  i^rotest,  nor,  on  the  other 
liand.  to  claim  what  he  cannot  maintain.  If  the  rights  thus  secured  by 
treaty  are  in  any  case  invaded  or  violated  the  consul  will  at  once  com- 
pUiin  to  the  local  authorities,  to  the  Department,  and  to  his  immediate 
superior.  These  complaints  should  set  forth  in  full  all  the  facts  show- 
ing the  invasion  or  violation. 

"  Inviolability  of  the  archives  and  papers  of  the  consulate  '  is  secured 
by  treaties  with  Austria-Hungary,  Argentine  Confederation,  Bolivia, 
Belgium,  Colombia,  Denmark,  Dominican  Republic,  Ecuador,  France, 
Germany,  Greece,  Hayti,  Mexico,  the  Netherlands  (and  colonies),  Orange 
Free  State,  Peru,  Portugal,  Salvador,  Sweden  and  Norway,  Switzer- 
land, Muscat,  and  New  Grenada.' 

"  Inviolability  of  the  consular  office  and  dwelling  '  is  secured  by  treaties 
with  Belgium,  Bolivia,  France,  Germany  (of  consuls  not  citizens),  Italy, 
Muscat,  and  Salvador; '  but  the  dwelling  cannot  be  used  as  an  asylum. 
It  is  agreed  with  Colombia  that  the  persons  and  dwellings  of  consuls  are 
to  be  subject  to  the  laws  of  the  country,  except  as  specially  exempted 
by  treaty.  The  consulates  iu  Germany  are  not  to  be  made  asylums  for 
the  subjects  of  other  powers." 

U.  S.  Cons.  Eeg.,  1881,  §§  lb,ff. 

"The  right  in  such  case  (of  infraction  of  treaties)  to  correspond  with 
the  local  authorities  is  secured  by  conventions  with  Austria-Hungary, 
Belgium,  Colombia,  France,  Germany.  Italy,  Netherlands  (and  colonies), 
and  Salvador;  and  in  case  the  local  authorities  fail  to  give  redress,  and 
there  be  no  diplomatic  representative,  they  may  apply  to  the  Govern- 
ment. 

"The  right  to  place  the  national  arms  and  the  name  of  the  consulate 
on  the  offices  is  given  by  treaties  Avith  Austria  Hungary  and  the  Nether- 
lands.(and  colonies);  on  their  offices  or  dwellings  by  treaty  with  Bel- 
gium and  Germany;  the  right  to  place  the  national  flag  on  their  dwell- 
ings, except  where  there  is  a  legation,  by  treaties  with  Austria-Hungary, 
Belgium,  and  Germany:  the  right  to  place  the  arms,  name,  and  flagon 
their  offices  or  dwellings  by  treaties  with  France  and  Salvador;  and  on 
their  offices  by  treaty  with  Italy;  and  the  right  to  place  the  name  and 
flag  on  their  dwellings  by  treaty  with  Colombia. 

"The  right  to  take  depositions  is  secured  by  conventions  with  Austria- 
Hungary,  Belgium,  France,  Germany,  Italy,  Netherlands,  New  Granada, 
and  Salvador.  Objection  has  been  raised  by  the  German  Government 
to  the  taking  of  testimony  by  consular  officers  of  the  United  States  in 
Germany,  except  as  provided  for  by  Article  IX  of  the  treaty  of  1871." 

In  certain  treaties  it  is  provided  that  requisitions  for  surrender  of 
fugitives  maj'  be  made  by  consular  officers  in  absence  of  diplomatic  rep- 
resentatives. 
lUd.,  ^^l. 

790 


CHAP,  v.]       RIGHT   TO    GIVE    ASYLUM    AND    PROTECTION.  [§  122. 

The  consular  regulations  of  the  United  States,  ISSI,  (•(•iitain  artich's 
on  the  following  additional  topics : 

Relations  of  consular  officers  to  the  diplomatic;  icpnstMitativcs  of  the  I  mini  States. 

Relations  of  consular  officers  to  naval  officers  of  the  United  States. 

Formalities  to  be  observed  on  arrival  at  post. 

Conespondence  of  consular  otHcers  with  the  Department  of  State. 

Passports  and  protection  of  citizens  of  the  United  States. 

Reciprocal  duties  of  consular  officers  and  masters  of  American  ves-sids,  including 
the  shipment  of  seamen. 

American  seamen  ;  discharge  of  seamen. 

Arrears  of  wages  and  extra  wages. 

Relief  of  seamen. 

Transportation  of  seamen. 

Desertion  of  seamen. 

Disynites  between  masters,  officers,  and  crews. 

Wrecked  and  stranded  vessels  and  surveys. 

Dutiesof  consular  officers  in  respect  to  American  or  foreign  built  vessels  transferred 
to  citizens  of  the  United  States  within  their  jurisdiction. 

Duties  as  to  American  vessels  engaged  in  the  transportation  of  Chinese  and  other 
emigrants. 

Miscellaneous  duties  in  regard  to  seamen  and  vessels  of  the  United  States  and  immi- 
gration ;  manifests ;  the  national  board  of  health  and  bills  of  health ;  protests ;  mutiny 
and  insubordination,  and  the  transportation  of  persons  charged  with  crimes  against 
the  United  States  ;  deportation  of  paupers  and  criminals  to  the  United  States ;  Mor- 
mon emigrants  ;  emigration  passenger  law  ;  miscellaneous  duties. 

Estates  of  citizens  and  seamen  dying  without  the  United  States. 

Miscellaneous  instructions;  marriages;  extradition  of  fugitive  criminals;  taxes; 
recommendations  for  office ;  public  speeches ;  correspondence  with  the  press;  permis- 
sion to  trade  ;  official  correspondence  and  bearing  abroad  ;  precedence  of  consular  (illi- 
cers ;  new  inventions,  discoveries,  «fec. ;  information  as  to  light-houses,  buoys,  .shoals, 
&e. ;  importation  of  neat  cattle  and  hides;  abuse  of  Government  pouches  ;  vcrilica- 
tion  of  j>owers  to  transfer  United  States  stock;  letters  uncalled  for;  letters  dotaincd 
at  foreign  ports ;  presents  and  testimonials  from  foreign  powers;  consular  uniform  ; 
consular  officers  acting  for  foreign  states. 

Duties  towards  American  citizens;  register  of  American  citizens;  annual  report  of 
marriages;  laws  respecting  majority,  marriage,  and  letters  rogatory;  examination  of 
title  and  other  unofficial  services;  notarial  acts. 

X.  RIGHT  TO  GIVE  ASYLUM  AND  PROTECTION. 

§  122. 

The  immunities  of  consuls  in  this  relation  are  discussed  in  connection 
with  those  of  diplomatic  agents,  ««i)m,  §  104. 

"Abuses  which  have  heretofore  occurred  in  granting  protection  from 
the  local  authorities  in  eastern  countries,  and  esi>ecially  in  the  Turkish 
dominions,  to  persons  who,  in  the  opinion  of  this  Department,  had  no 
claim  thereto,  render  it  advisable  that  the  legations  and  consulates  in 
that  quarter  should,  once  in  six  months,  report  the  nund)er,  names,  and 
occupations  of  the  persons  to  whom,  during  the  six  months  prece«ling, 
such  protection  may  have  been  given,  or  by  whom  it  may  have  been 
claimed.  Such  report  will  in  future  be  expected  to  be  made  at  the  be- 
ginning of  every  January  and  July.     It  is  believed  that  sound  policy 

791 


^  123.]  CONSULS.  [chap.  v. 

dictates  the  utmost  scrutiny  and  caution  in  extending  the  protection  of 
this  Government  to  any  persons  abroad  who  may  not  be  citizens  of  the 
United  States.  Should  that  policy  be  adopted  and  scrupulously  ad- 
hered to,  those  to  whom  protection  may  really  be  due  may  expect  it  to 
be  efficient.  Such  protections  should  in  no  event  be  issued  to  aliens 
who  are  not  actually  in  discharge  of  official  duty  under  the  direction  of 
the  respective  consuls,  or  employed  in  their  domestic  service.  In  no 
case  should  they  be  granted  where  they  will  operate  to  screen  the 
holder  from  prosecution  for  offenses  against  the  laws  of  the  country,  or 
where  reasonable  ground  exists  for  objection  by  the  Government.  No 
instrument  in  the  nature  of  a  passport  should  be  issued  to  persons  thus 
protected  ;  it  will  be  sufficient  to  grant,  when  necessary,  a  consular  cer- 
tificate setting  forth  the  relation  and  duties  in  connection  with  the  con- 
sulate. 

"  Eequests  have  occasionally  been  made  upon  the  Government  of  the 
United  States  to  permit  its  diplomatic  and  consular  officers  to  extend 
their  protection  to  citizens  or  subjects  of  a  foreign  Government  who 
may  desire  it  and  who  may  be  sojourning  at  places  where  there  are  no 
diplomatic  or  consular  representatives  of  that  Government.  This  Gov- 
ernment has  from  time  to  time,  upon  the  request  of  friendlj^  powers, 
given  to  its  diplomatic  and  consular  officers  authority  to  take  upon 
themselves,  with  the  consent  of  the  Government  within  whose  juris- 
diction they  reside,  the  function  of  representing  those  powers  at  places 
where  the  latter  had  no  such  officers.  It  has  understood  this  authority 
to  be  restricted  simply  to  the  granting  of  the  services  and  good  offices 
of  our  representatives,  with  their  own  consent,  to  meet  what  has  ordi- 
narily been  a  fortuitous  and  temporary  exigency  of  the  friendly  Gov- 
ernment. When  this  function  is  accepted,  which  must  be  done  only 
with  the  approval  of  the  Department  of  State,  the  diplomatic  or  con- 
sular officer  becomes  the  agent  of  the  foreign  Government  as  to  the 
duties  he  may  perform  for  its  citizens  or  subjects ;  he  becomes  responsi- 
ble to  it  for  liis  discharge  of  those  duties,  and  that  Government  is  alone 
responsible  for  his  acts  in  relation  thereto.  He  does  not,  however,  for 
this  purpose  become  a  diplomatic  or  consular  officer  of  the  foreign 
Government." 

U.  S.  Cons.  Reg.,  1881,  U  175,  /. 

XI.  BUSINESS  RELATIONS  OF. 

§  123. 

An  arbitrary  refusal  of  the  Spanish  consul  at  Kew  York  to  authenti- 
cate the  signature  of  the  Secretary  of  State,  "  an  act  appropriately  be- 
longing to  the  consular  functions,"  on  the  ground  that  "  he  or  his  Gov- 
ernment had  conceived  some  displeasure  towards  the  persons  who  have 
executed  some  of  the  papers  accompanying  the  signature  of  the  Secre- 
tary," is  in  contravention  of  international  law  and  practice. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Magallon,  Jan.  19,  1854.  MSS.  Notes,  Spain. 
As  to  duties  of  consuls  acting  as  administrators  of  citizens  dying  in  foreign 
lands,  see  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Aspinwall,  Aug..  21,  1855,  cited 
supra,  §  121 ;  Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Chadwick,  Aug. 
19,  1875 ;  Mr.  Cadwalader  to  Mrs.  Hopkins,  Mar.  27,  187G,  ibid. 
For  report  as  to  consular  officers  engaged  in  business  in  violation  of  law,  see 
House  Ex.  Doc.  90,  35th  Cong.,  2d  sess. 

792 


CHAP,  v.]  BUSINESS    RELATIONS    OF.  [^  123. 

The  einployinent  of  lueichauts  as  cousuls  is  sustaiiicd  not.  only  by 
policy  and  expediency,  but  by  the  practice  of  all  maritime  powers. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Burlingamo,  Fob.  4,  1863;  MSS.  IiiHt.,  China. 

Same  to  same,  Mar.  3,  1863 ;  ibid. 
As  to  acknowledgment  of  papers  before  consuls,  see  Mr.  Fish,  Sec.  of  State,  to 

Mr.  Weeks,  .Jan.  21,  187i>,  cited  ««;;»•«,  $  121. 
That  the  consul's  bond  does  not  cover  mismanat^ement  by  him  in  unoOicial  buMi- 

uess  relations,  see  Mr.  Davis  to  Mr.  Marvin,  Mar.  5,  1873,  cited  nupra, 

$  121. 

"  Under  long-establisbed  regulations  the  services  of  the  diph)inatic 
or  consular  officers  of  the  Government  cannot  be  claimed  by  private 
persons  in  such  matters  as  you  refer  to.  No  objection  will  be  made  l)y 
the  Department  should  any  consular  officer  of  the  United  States  be 
willing  to  lend  his  services  to  you  in  such  a  matter.  Such  services 
would  be  personal  and  not  official,  and  he  would  be  entitled  as  any 
other  person  employed  to  i)roper  compensation,  which  matter  of  com- 
pensation, and  as  to  any  expenses,  should  be  arranged  when  api)lica- 
tion  is  made  to  him." 

Mr.  Cadwalader,  Asst.  Sec.  of  State,  to  Mr.  Davis,  Mar.  11,  187.5.     MSS.  Dom. 

Let. 

Consular  officers  abroad,  undertaking  private  business  on  behalf  of 
citizens  of  the  United  States,  do  so,  not  as  representatives  of  the  De- 
partment of  State,  but  as  private  agents  of  their  employers,  whom  they 
are  at  liberty  to  serve  in  matters  not  conflicting  with  consular  duty. 

Mr.  F.  W.  Seward,  Asst.  Sec.  of  State,  to  Mr.  Schoenberger,  Dec.  2,  lo78  ;  Mr. 
Evarts,  Sec.  of  State,  to  Mr.  Downey,  July  12,  1879.     MSS.  Dom.  Let. 

"  It  is  no  part  of  the  duty  of  diplomatic  or  consular  officers  to  attend 
to  the  prosecution  of  private  claims  of  American  citizens  in  foreign 
countries,  especially  when  the  courts  of  justice  are  open  to  them." 
Mr.  Evarts,  Sec.  of  State,  to  Mr.  Yoder,  May  21,  1880.     MSS.  Dom.  Let. 

"  It  is  entirely  a  matter  of  their  owu  volition,  and  not  only  is  it  proper 
that  all  expenses  to  which  they  may  be  put  should  be  provided  for,  but 
this  Department  has  moreover  allowed  them  to  charge  a  reasonable  fee 
for  their  services."  If  payment  of  such  expenses  is  refused,  the  De- 
partment will  direct  the  attention  of  the  delinquent  parties  to  be  called 
to  such  refusal. 

Mr.  Evarts,  Sec.  of  State,  to  clerk  of  Peoria  court,  May  15,  1880.  MSS.  Dom. 
Let.  See  Mr.  Hunter,  Second  Asst.  Sec.  of  State,  to  Mr.  Diller,  Apr.  28, 
1861;  ibid. 

"  United  States  consuls  in  foreign  countries,  and  especially  in  the  East 
(China  and  Japan),  are  allowed  and  instructed  to  act  for  citizens  of  the 
United  States  in  regard  to  their  private  matters,  and  to  give  thejn 
advice  as  to  the  settlement  of  controversies  between  themselves  or  be- 
tweei^  them  and  the  citizens  or  subjects  of   any  other  Cioveriiiin-Mt 

793 


§  123.]  CONSULS.  [chap.  v. 

residing  in  the  country  of  the  consul's  otiicial  residence,  when  called 
upon  to  do  so  by  such  American  citizens,  and  when  a  consular  officer 
can  do  this  without  prejudice  to  the  due  discharge  of  his  official  duties. 
The  paragraphs  of  the  regulations  to  which  you  refer  are  simply  in- 
tended to  impress  upon  the  consul  more  earnestly  his  obligations  to  his 
countrymen  in  this  regard." 

•  Mr.  Davis,  Asst.  Sec.  of  State,  to  Mr.  Weiller,  Feb.  20, 1884.     MSS.  Dotn.  Let. 

"  I  have  received  your  No.  902,  of  the  18th  ultimo,  in  the  matter  of 
the  arrest  of  Mr.  John  Dalton,  United  States  consul  at  Oiudad  Bolivar, 
by  order  of  the  President  of  Venezula,  and  have  to  approve  your  re- 
quest of  Mr.  Dalton  to  be  immediately  furnished  with  full  particulars 
in  the  premises. 

"  My  instruction  No.  294,  of  the  7th  instant,  will  have  shown  you  the 
action  thus  far  taken  with  Mr.  Soteldo,  the  Venezuelan  minister  here, 
in  regard  to  the  case.  You  will  have  observed  from  that  instruction 
the  Department's  intention  to  await  details  before  formulating  a  spe- 
cific complaint. 

"  Mr.  Dalton  belongs  to  a  class  of  consuls  authorized  to  transact  busi- 
ness. If  he  does,  he  is  for  all  purposes  of  such  business  subject  to  the 
same  treatment  as  any  other  American  resident  engaged  in  trade  in 
Venezuela.  He  is  manifestly  subject  to  no  less  favorable  treatment, 
although  he  may  have  no  specific  personal  exemptions  or  privileges  by 
reason  of  his  ofSce.  But  if  he,  a  consul,  has  been  subjected  to  treatment 
to  which  no  American  citizen  under  the  treaty  can  be,  that  is,  to  impris- 
onment in  virtue  of  an  executive  order  without  trial  or  opportunity  for 
legal  defense,  then  the  fact  of  his  being  known  as  the  representative  of 
a  friendly  power  might  be  deemed  to  aggravate  the  injury  committed. 

"You  should  lose  no  time  in  sending  hither  copies  of  all  documents, 
the  petition,  the  order  of  arrest,  the  correspondence  between  yourself, 
the  Venezuelan  Government,  and  Mr.  Dalton,  and  any  other  informa- 
tion bearing  upon  the  case,  in  order  that  the  Department  may  give  to 
it  a  full  and  impartial  consideration." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.    Baker,  May  12,  1884.     MSS.   Inst., 
Veuez. 

"  In  reply  to  the  suggestion  contained  in  yours  of  the  13th  instant, 
that  iustructions  be  made  to  consuls  regarding  inquiries  on  the  financial 
standing  of  foreign  individuals  and  firms,  I  would  say  that  such  a  mat- 
ter does  not  come  within  the  proper  functions  of  the  Department. 
While  endeavoring  to  meet  all  demands  made  upon  it  in  the  interest  of 
manufacturers  and  merchants  of  the  United  States,  it  could  not  under- 
take to  give  the  information  you  ask  for,  nor  could  it  impose  such  a 
task  upon  consuls  without  injury  to  the  public  service.  To  pass  upon 
the  solvency  of  a  firm  or  an  individual  is,  under  any  circumstances,  a 
matter  of  great  difficulty,  involving  many  delicate  considerations, 
which  it  is  impossible  for  a  consul,  having  so  many  other  duties  inci- 
794 


CHAP,  v.]  JURISDICTION    OF    SEAMEN    AND    SHIPPING.  [§  124. 

(lent  to  hi«  office,  to  duly  woi;,'li  and  so  to  arrive  at  a  conclusion  that 
will  be  just  to  the  person  makinjL?  the  inquiry  as  to  the  firm  or  indi- 
vidual in  question." 

Mr.  Porter,  Acting  Sec.  of  State,  to  Messrs.  Stearns  &  Co.,  Jan.  lit,  im\.  MSS. 
Dom.  Let. 

A  consul,  thouo-h  a  public  agent,  is  clothed  with  authority  only  for 
commercial  purposes.  Be  has  a  right  to  interpose  claims  for  the  resti- 
tution of  property  belonging  to  subjects  of  his  own  country,  but  it  is 
not  competent  for  him,  without  the  si^ecial  authority  of  his  Govern- 
ment, to  interpose  a  claim  on  account  of  the  violation  of  the  territorial 
jurisdiction  of  his  country. 
The  Anne,  :5  Wheat.,  4:?;'). 

In  the  absence  of  specific  powers  bestowed  by  competent  authority, 
a  consul  has  no  right  to  receive  the  proceeds  of  property  libeled  au«l 
transferred  into  the  registry  of  the  court. 
The  Bello  Corrunes,  6  Wheat.,  152. 

A  trading  consul,  in  all  that  concerns  his  trade,  is  liable  in  the  same 
way  as  a  native  merchant.  The  character  of  consul  does  not  give  any 
protection  to  that  of  merchant,  when  they  are  united  in  the  same  person. 

Coppell  V.  Hull,  7  Wall..  542;  supra,  $  121. 

"  In  Austria-Hungary,  Belgium,  Germany,  Italy,  and  the  Nertherlands 
(and  colonies),  the  local  authorities  are  required  to  inform  consuls  of  the 
death  of  their  countrymen,  intestate,  or  without  known  heirs.  In  (ler- 
many,  consuls  have  the  right  toai)pear  for  absent  heirs  or  creditors  until 
regularly  authorized  rei)resentatives  appear.  In  Peru,  Salvador,  Tunis, 
Morocco,  Muscat,  Persia,  and  Tripoli,  they  may  administer  on  the  i)rop- 
erty  of  their  deceased  countrymen.  In  Colombia  they  may  do  so,  ex- 
ce])t  where  legislation  forbids  it.  In  Costa  Rica,  Honduras,  and  Nicara- 
gua, they  may  nominate  curators  to  take  charge  of  such  property,  as 
far  as  local  laws  permit.  In  Paraguay  they  may  become  temporary 
custodians  of  such  ])roperty.  [n  Germany  they  may  take  charge  of  the 
efl'ects  of  deceased  sailors." 

U.  S.  Cons.  Reg.,  1381,  §  97. 

XII.  PORT  JURISDICTION  OF  SEAMEN  AND  SHIPPING. 

§  124. 

As  to  subjection  of  merchant  vessels  to  law  of  port,  see  supra  §  35. 

"The  United  States  and  France  have,  by  their  consular  convention, 
given  mutually  to  their  consuls  jurisdiction  in  certain  cases  especially 
enumerated.  But  that  convention  gives  to  neither  the  power  of  estab- 
lishing complete  courts  of  admiralty  within  the  territory  of  the  other, 
nor  even  of  deciding  the  particular  question  of  prize  or  no  prize." 

Mr.  Jeflferson,  Sec.  of  State,  to  Mr.   Morris,  Aug.  16,  1793.    MSS.  Inst..  Minis- 
ters; 4  Jefferson's  Works,  31. 
As  to  consular  jurisdiction  in  Oriental  ports,  see  infra,  ^  125  ;  supra,  ^  35,  35a. 

796 


§  124.1  CONSULS.  [chap.  v. 

Foreign  coiisuhs  cannot  exercise  admiralty  jurisdiction  in  the  United 
States,  except  by  force  of  a  treaty. 
Glass  V.  The  Sloop  Betsey,  3  Dull.,  6. 

The  right  given  to  seamen  by  Revised  Statutes,  section  4567,  to  lay 
their  complaints  before  the  American  consul  in  foreign  ports,  is  one 
vrhich  a  court  of  admiralty  will  carefully  protect. 
Morris  v.  Cornell,  1  Sprague,  62 ;  itifra,  $  125. 

Where  a  minor,  having  concealed  himself,  without  the  knowledge  of 
his  father,  on  board  of  a  whaling-ship,  and  not  being  discovered  until  the 
vessel  was  at  sea,  being  then  left  by  the  master  in  the  care  of  the  Amer- 
ican consul  at  the  first  port  at  which  he  touched,  it  was  held  to  be  the 
duty  of  the  consul  to  provide  for  and  send  him  home  to  the  United 
States.  • 

Luscoui  V.  Osgood,  1  Sprague,  82. 

The  advice  of  a  consul,  in  a  foreign  port,  gives  to  the  master  of  a 
vessel  no  justification  for  an  illegal  act. 

Wilsou  V.  The  Mary,  Gilpin,  33. 

The  consul,  where  a  seaman  is  entitled  to  the  privileges  of  an  Ameri- 
can seaman,  and  is  destitute,  is  the  proper  judge  as  to  the  ship  on 
board  of  which  he  should  be  placed  for  his  return  to  the  United  States. 
Matthews  v.  Offley,  3  Sumner,  115. 

A  consul  cannot  detain  seamen  in  prison  as  a  punishment,  after  he 
has  discharged  them  from  their  contract  at  the  request  of  the  master. 
Jordan  r.  Williams,  1  Curtis,  69. 

The  action  of  a  consul  in  discharging  a  seaman  in  a  foreign  port  is 
not  conclusive  where  a  libel  is  filed  for  wages. 

Canpbell  v.  The  Uncle  Sam,  McAllister,  77. 

Notwithstanding  the  Eevised  Statutes,  section  4576,  and  section  8  of 
act  of  1840  (5  Stat.,  395),  requiring  masters  of  American  vessels  to  give 
bond  for  the  return  of  all  the  crew,  unless  discharged  in  a  foreign  coun- 
try with  consent  of  a  consul,  these  sections,  construed  with  the  aid  of 
the  other  parts  of  these  statutes,  do  not  require  a  master  to  return  to 
the  United  States  foreign  seamen  shipped  at  their  own  home,  for  a  par- 
ticular cruise,  ending  where  it  began,  and  discharged  there  according 
to  the  terms  of  their  contract,  though  without  the  consent  of  a  consul. 
The  consent  of  a  consul  could  not  be  rightly  withheld  in  such  a  case, 
and  there  is  no  law  requiring  it  to  be  asked. 
U.  S.  I".  Parsons,  1  Lowell,  107. 

Under  sec.  20,  act  June  26,  1884,  amending  Eev.  Stat.,  §  4576,  a  mas- 
ter may  make  a  contract  with  seamen  providing  for  their  discharge 
abroad  without  being  required  to  pay  extra  wages  on  such  discharge. 

796 


CHAP.  V.J  .JURISDICTION    OF    SEAMEN    AND    SlllI'l'INO.  [§  124. 

Seamen  left  behind  in  a  foreign  coiintiy  on  acc-oiuit  ol'  inahiliiy,  t'roia 
sickness,  to  return  in  the  vessel  in  which  they  went  out,  are  within  the 
provisions  of  the  act  of  February  28,  ISO.i,  snpijlcnientary  to  the  act 
concerning  consuls,  and  for  tliem  the  master  should  <l(*i)osit  with  the 
consul  three  months'  pay  over  wages,  &c.,  as  in  other  cases  of  vohiii 
tary  discharge. 

1  Op.,  593,  Wirt,  1823. 

Under  act  of  June  26,  1884,  but  one  month's  extra  wages  can  be 
exacted  in  this  or  any  other  case. 

Consular  jurisdiction  depends  on  the  general  law  of  nations,  existing 
treaties  between  the  two  Governments  affected  by  if,  and  upon  the 
obligatory  force  and  activity  of  the  rule  of  reciprocity.  French  con- 
sular jurisdiction  in  an  American  port  depends  on  the  correct  interpre- 
tation of  the  treaties  existing  between  France  and  the  United  States, 
which  limit  it  to  the  exercise  of  police  over  French  vessels,  and  juris- 
diction in  civil  matters  in  all  disputes  which  may  arise;  and  provide 
that  such  police  shall  be  confined  to  the  interior  of  the  vessels,  and 
shall  not  interfere  with  the  police  of  our  ports  where  the  vessels 
shall  be.  They  also  provide  that  in  cases  of  crimes  and  breaches  of 
the  peace  the  offenders  shall  be  amenable  to  the  judges  of  the  country. 
The  claim  of  the  French  envoy  for  the  exercise  of  judicial  jjower  by 
the  consul  of  his  Government  in  the  port  of  Savannah  is  not  warranted 
by  any  existing  treaties,  nor  by  a  rule  of  reciprocity  which  the  Execu- 
tive has  power  to  permit  to  be  exercised.  "  The  juinciples  of  interna- 
tional law,  as  they  are  recognized  in  Europe,  afford  no  warrant  for  the 
exercise  of  judicial  power  by  consuls ;  and  the  rights  and  duties  of 
these  functionaries  depend,  both  for  their  authority  and  extent,  upon 
the  treaties  subsisting  between  the  Governments  resi)ectively  inteV- 
changing  this  species  of  commercial  agents." 

2  Op.,  381,  Berrien,  1830.     See  Mr.  Van  Buren  to  Mr.  K«iix  do  Kochellf,  .Ian.  -'7, 

1831.     MSS.  Notes,  For.  Leg. 

The  powers  and  duties  of  American  consuls  as  to  seamen's  wages  are 
confined  to  vessels  owned  by  citizens  of  the  Tnited  States,  and  consti- 
tuting a  part  of  our  mercantile  marine  by  sailing  under  our  Hag. 
2  Op.,  448,  Berrien,  1831. 

Masters  of  American  vessels  entering  foreign  ports  where  there  is 
an  American  consul,  and  remaining  so  long  that,  by  the  local  regida- 
tions,  they  are  required  to  enter  and  afterward  to  clear  in  regular  form, 
are  required  to  deposit  their  registers,  &c.,  with  such  consul,  irresjiect- 
ive  of  the  purpose  for  which  the  port  was  entered. 

.^>  Oi).,  Ifil,  .Joliuson,  1S4'J. 
In  order  that  the  master  of  a  ship  on  her  '•  arrival ''  in  a  foreign  port 
shall  be  compellable  to  deposit  the  shii)'s  i)ai)ers  with  the  consul,  the 
arrival  must  be  such  an  one  as  involves  entry  and  clearance. 

6  Op.,  163,  Cashing,  1853.  797 


§  124.]  CONSULS.  [chap.  v. 

Consuls  have  no  authority  to  order  the  sale  of  a  ship  in  a  foreign  port, 
either  on  complaint  of  the  crew  or  otherwise.  If,  on  such  sale,  the  con- 
sul retain  the  money  for  the  payment  of  seamen's  wages,  the  United 
States  are  not  liable  to  the  owners  for  the  money  thus  illegally  received 
by  the  consul. 

6  Op.,  617,  Cashing,  1854. 

Masters  of  American  vessels  are  subject  to  prosecution  in  the  name  of 
the  consul  for  omission  to  deposit  with  him  the  papers  according  to  law, 
but  not  to  indictment.     (2  Stat.,  203,  §  2 ;  Eev.  Stat.,  §  4309.) 

7  Op.,  395,  Gushing,  1855. 

American  consuls  have  no  authority  to  require  masters  of  American 
vessels  to  take  on  board,  and  convey  to  the  United  States  for  trial,  jjer- 
sons  accused  of  crime. 

7  Op.,  722,  Cushing,  1856. 

The  authority  of  consuls  of  the  United  States  in  foreign  countries,  in 
cases  of  crime  at  sea  or  in  port,  is  ministerial  only,  and  not  judicial. 

8  Op.,  380,  Cushing,  1857. 

The  commander  of  an  American  vessel  is  required  to  deliver  his  regis- 
ter and  other  ship's  papers  to  the  consul  at  a  foreign  port  only  in  cases 
where  he  is  compelled  to  make  an  entry  at  the  custom-house. 

9  Op.,  256,  Black,  1858. 

Under  the  28th  section  of  the  act  of  August  18, 1856,  consuls  have  the 
authority  to  enforce  the  payment  of  wages  in  certain  cases  and  consular 
fees,  but  not  a  general  power  of  deciding  upon  all  manner  of  disputed 
claims  and  demands  against  United  States  vessels.  By  the  act  of  1803 
th,e  consul  is  made  the  party  to  bring  suit  for  penalties  incurred  under 
it,  but  not  the  judge  to  decide  it.  He  cannot  demand  the  penalty,  decree 
it  to  be  due,  and  enforce  its  payment  by  detaining  the  ship's  jjapers. 

9  Op.,  384,  Black,  1859. 

A  consul  of  the  United  States  in  a  foreign  port  has  no  power  to  retain 
the  papers  of  vessels  which  he  may  suspect  are  destined  for  the  slave 
trade. 

9  0]).,  426,  Black,  1859. 

The  master  of  an  American  vessel  sailing  to  or  between  ports  in  the 
British  North  American  provinces  is  required,  on  arriving  at  any  such 
port,  to  deposit  his  ship's  papers  with  the  American  consul. 

The  act  of  1861  (12  Stat.,  315 ;  Eev.  Stat.,  §  4309)  does  not  change  or 
aflect  the  duties  of  masters  of  American  vessels  running  regularly  by 
weeklj^  or  monthly  trips  or  otherwise  between  foreign  ports,  as  im- 
posed by  act  of  1803  (2  Stat.,  203;  Rev.  Stat.,  §  4309). 

If  an  American  vessel  is  obliged  by  the  law  or  usage  prevailing  at  a 
foreign  port  to  effect  an  entry,  and  she  does  enter  conformably  to  the 
798 


CHAP,  v.]  JUKISDICTION    OF    SEAMEN    AND    .SHIPPING  [§  124 

local  law  01-  usage,  her  couiiug  to  .such  roieij;ii  povi  aiiiouiits  lo  an 
"arrival"  within  the  meaning  of  section  13  of  act  of  1.S03,  independ- 
ently of  any  ulterior  destination  of  the  vessel  or  the  time  she  may  re- 
in }i,m,  or  intend  to  remain,  at  such  port,  or  the  particular  business  she 
may  transact  there. 

11  Op.,  73,  Bates,  1866. 

The  cousul  of  the  United  States  at  Ilonolulu  has  the  right  and  i».>\\»-r. 
without  interference  from  the  local  courts,  to  determine  questions  :is  be- 
tween citizens  of  the  United  States,  who  comprise  the  crew  of  an  Amci- 
icau  vessel,  and  are  bound  to  fulfill  the  obligations  imposed  by  the  shii*- 
ping  articles. 

11  Op.,  508,  Speed,  1866. 

A  consul  of  the  United  States  has  no  authority  to  demand  and  re- 
ceive from  the  master  of  a  vessel  the  money  and  effects  belonging  ro  a 
deserter  from  the  vessel. 

14  Op.,  520,  Williams,  1875. 

The  right  "  to  sit  as  judges  and  arbitrators  in  such  ditibrences  as  may 
arise  between  the  captains  and  crews,"  given  to  consuls,  vice-consuls, 
&c.,  by  article  13  of  the  treaty  with  Sweden  and  Norway  of  18J7,  is 
limited  to  cases  of  a  civil  nature,  and  does  not  extend  to  public  offenses. 
By  said  article  the  right  of  interference  is  expressly  given  to  the  locid 
authorities  where  the  differences  between  the  captains  and  crews  are 
such  as  to  ''disturb  the  order  or  tranquillity  of  the  country,"  whi<*,li  in- 
cludes all  acts  against  each  other  amounting  to  actual  breach<'s  oi"  the 
public  peace. 

It  seems  that  a  more  enlarged  jurisdiction  is  conferred  uj)on  consuls 
in  some  other  treaties,  as  e.  g.,  in  the  treaty  with  France  of  Fci)ruary 
23,  1853;  in  that  with  the  German  Empire  of  December  11,  1871  ;  in 
that  with  Italy  of  February  8,  1868. 

15  Op.,  178,  Tail,  1876. 

"Exclusive  jurisdiction  over  such  disputes  (between  masters,  olliccrs. 
and  crews)  in  the  vessels  of  the  United  States,  including  (pu'stioiis  of 
wages,  is  conferred  by  treaties  or  conventions  with  Austria-Ilungwry, 
Belgium,  Colombia,  Denmark,  Dominican  Kei)ublic,  France,  Germany, 
Greece,  Italy,  the  Netherlands  (and  the  colonies),  Portugal,  Kussia,  S;il- 
vador,  Sweden  and  Norway,  and  Tripoli." 
U.  S.  Cons.  Reg.,  1881,  ^  93. 

A  right  to  reclaim  deserters  from  the  vessels  of  the  United  States  is 
conferred  by  certain  other  treaties. 

lUd.,  §  94. 

By  other  treaties  the  right  to  adjust  damages  snlifered  at  sea  is  gixcn. 

IMd.,  $  95. 

799 


§  124.]  CONSULS.  [chap.  v. 

"  The  act  to  enforce  treaty  provisioDS  lesijectiug  disputes  between 
masters  and  crews  was  approved  June  11,  1864.  (13  Stat.  L.,  121.)  It 
is  not  to  take  effect  as  to  the  ships  or  vessels  of  any  nation,  unless  the 
President  shall  have  been  satisfied  that  similar  provisions  have  been 
made  by  the  other  contracting  party  for  the  execution  of  the  treaty,  and 
shall  have  issued  his  proclamation  to  that  effect.  Ou  the  10th  of  Feb- 
ruary, 1870,  proclamation  was  made  under  this  act  as  to  the  treaties  with 
France,  Prussia,  ^nd  the  other  states  of  the  North  German  Union  and 
Italy  (9  Op.,  96),  and  on  the  11th  of  May,  1872,  as  to  the  treaty  with 
Sweden  and  Norway.     (13  Stat.  L.,  121.) 

"This  statute  authorizes  any  court  of  record  of  the  United  States,  or 
auj'  judge  thereof,  or  any  commissioner  appointed  under  the  laws  of  the 
United  States  to  take  bail  or  affidavits,  or  for  other  judicial  purposes 
whatsoever,  to  receive  the  api)lication  of  the  consular  officer,  to  issue 
process  against  the  person  comjilained  of,  and  if  it  shall  appear,  on 
his  being  returned  before  the  magistrate,  that  he  is  not  a  citizen  of  the 
United  States,  and  if  a  prima  facie  case  shall  be  made  out  that  the 
matter  concerns  only  the  internal  order  and  discipline  or  the  foreign 
vessel,  and  does  not  affect  directly  the  laws  of  the  United  States  or  the 
rights  and  duties  of  any  citizen,  then  the  magistrate  shall  commit  the  sea- 
man to  prison  to  abide  the  lawful  order  or  control  of  the  master;  provided 
the  expenses  of  the  proceedings  shall  be  paid  by  the  consular  officer, 
and  the  seaman  shall  not  be  detained  for  more  than  two  months  after 
his  arrest. 

"  The  statute  respecting  the  restoration  of  deserters  was  approved 
March  2, 1829,  and  was  entitled  'An  act  to  provide  for  the  apprehension 
and  delivery  of  deserters  from  certain  foreign  vessels  in  the  ports  of  the 
United  States.'  (4  Stat.  L.,  359.)  It  provides  '  that  on  application  of 
a  consul  or  vice-consul  of  any  foreign  Government,  having  a  treaty  with 
the  United  States  stipulating  for  the  restoration  of  seamen  deserting, 
made  in  writing,  stating  that  the  person  therein  named  has  deserted 
from  a  vessel  of  any  such  Government  while  in  any  port  of  the  United 
States ;  and  on  proof  by  the  exhibition  of  the  register  of  the  vessel,  ship's 
roll,  or  other  official  document,  that  the  i)erson  named  belonged  at  the 
time  of  desertion  to  the  crew  of  said  vessel,  it  shall  be  the  duty  of  any 
court,  judge,  justice,  or  other  magistrate  having  competent  power,  to 
issue  warrants  to  cause  the  said  person  to  be  arrested  for  examination, 
and  if,  on  examination,  the  facts  stated  are  found  to  be  true,  the  person 
arrested  not  being  a  citizen  of  the  United  States,  shall  be  delivered  up 
to  the  said  consul  or  vice-consul  to  be  sent  back,'  etc. 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

Some  of  the  above  provisions  are  modified  by  the  act  of  June  26, 
1884,  to  which  attention  is  again  called. 

The  act  of  June  26,  1884,  provides  as  follows : 

Sec.  ii.  That  section  forty-five  hundred  and  eighty-two  of  the  Kevi.sed  Statutes  be 
amended  so  as  to  read  as  follows : 

''Sec.  4582.  Whenever  a  vessel  of  the  United  States  is  sold  in  a  foi'eign  country, 
and  her  company  discharged,  it  shall  be  the  duty  of  the  master  to  produce  to  the  con- 
sular oflQcer  the  certified  list  of  his  ship's  company,  and  also  the  shipping  articles,  and 
to  pay  To  said  consular  officer  for  every  seaman  so  discharj»ed  one  month's  wages  over 
and  above  the  wages  which  may  then  be  due  to  such  seaman;  but  in  case  the  master 
of  the  vessel  so  sold  shall,  with  the  assent  of  said  seaman,  provide  him  with  adequate 
employment  on  board  some  other  vessel  bound  to  the  port  at  which  he  was  originally 
shipp<'d,  or  to  such  other  port  as  may  be  agreed  upon  by  him,  then  no  payment  of 
extra  wages  shall  be  required." 

800 


CHAP,  v.]     JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZED  LANDS.      [§  125. 

Sec.  6.  That  sectiou  forty  six  hundred  of  the  Revised  Statutes  be  amended  so  a»  to 
read  as  follows: 

"Sec.  4(300.  It  shall  be  the  duty  of  consular  officers  to  reclaiui  deserters  and  di»- 
conntenauce  insubordination  by  every  means  within  their  power,  and  where  the  local 
authorities  can  be  usefully  employed  for  that  purpose,  t<»  l<-nd  tlit-ir  aid  and  us«!  their 
exertions  to  that  end  in  the  moat  etlectual  manner.  In  all  cast-s  when-  ilexert<-rs  are 
apprehended  the  consular  officer  shall  inrpiire  into  the  facts;  and  if  he  is  satisfied 
that  the  desertion  was  caused  by  unusual  or  cruel  treatment,  In-  shall  discharge  the 
seaman,  and  require  the  master  of  the  vessel  from  which  such  M'aman  is  discharged 
to  pay  one  month's  wages  over  and  al)Ovo  the  wages  then  due;  and  f  lie  <)lh<<r  dis- 
charging such  seaman  shall  enter  upon  the  crew-list  and  shipping  articles  the  cause 
of  discharge,  and  the  particulars  in  which  the  cruelty  or  unusual  treatment  consi.sted, 
and  the  facts  as  to  his  discharge  or  re  engagement,  as  the  case  may  be,  and  subscribe 
his  name  thereto  otiicially." 

Skc.  7.  That  section  forty-five  hundred  and  eighty-one  of  the  Revised  Statutes  b« 
amended  so  as  to  read  as  follows: 

"Sec  4."ibl.  If  any  consular  officer,  when  discharging  any  seam.'in,  shall  neglect  to 
require  the  payment  of  and  collect  the  arrears  of  wages  and  extra  wages  refiuired  to 
be  paid  in  the  case  of  the  discharge  of  any  seaman,  he  shall  be  accountable  to  the 
United  States  to  the  full  amount  thereof.  If  any  seaman,  after  his  discharge,  shill 
have  incurred  any  expense  for  board  or  other  necessaries  at  the  place  of  his  discharge, 
Ijefore  shipping  again,  or  for  transportation  to  the  United  States,  such  expt-nse  shall 
be  paid  out  of  the  arrears  of  wages  and  extra  wages  received  by  the  consular  officer, 
which  shall  be  retained  for  that  purpose  and  the  balance  only  pai<i  over  to  such  sea- 
men.'" 

"Skc.  8.  That  section  forty-five  hundred  and  eighty-fonr  of  the  Revised  Statutes 
be  hereby  repealed." 

Sec.  9.  That  section  forty-five  hundred  and  seventy-eight  of  the  Revised  Statutes 
be  amended  so  as  to  read  as  follows: 

"Sec.  4.'J78.  All  masters  of  vessels  of  the  United  States,  and  bound  to  some  port  of 
the  same,  are  required  to  take  such  destitute  seamen  on  board  their  vessels,  at  the 
request  of  censular  officers,  and  to  trau.sport  them  to  the  port  in  the  United  States  to 
which  such  vessel  may  be  bound,  on  such  terms,  not  exceeding  ten  dollars  for  each 
person  for  voyages  of  not  more  than  thirty  days,  and  not  exceeding  twenty  dollars 
tor  each  person  for  longer  voyages,  as  may  be  agreed  between  the  m:ister  and  the 
consular  officer;  and  said  consular  officer  shall  issue  certilicates  for  sncii  transporta- 
tion, which  certificates  shall  be  assignable  for  collecti6n.  If  any  such  destitute  sea- 
man is  80  disabled  or  ill  as  to  be  unable  to  perform  duly,  the  consular  officer  shall  .so 
certify  in  the  certificate  of  transportation,  and  such  additional  coni]>ensaiion  shall  be 
paid  as  the  First  Comptroller  of  the  Treasury  shall  deem  proper.  Every  such  master 
who  refuses  to  receive  and  transjiort  such  seamen  on  the  request  or  order  (»f  such  con- 
sular officer  shall  be  liable  to  the  United  States  in  a  penalty  of  one  hundred  dollars 
for  each  seaman  so  refused.  The  certificate  of  any  such  consular  officer,  given  under 
his  hand  and  official  seal,  shall  be  presumptive  evidence  of  such  retu-al  in  any  court 
of  law  having  jurisdicti<m  for  the  recovery  of  the  penalty.  No  master  of  any  vessel 
shall,  however,  be  obliged  to  take  a  greater  number  than  one  man  to  every  cue  hun- 
dred tons  burden  of  the  vessel  on  any  one  voyage." 

XIII.  JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZED  LANDS. 

§  125. 

The  judicial  functions  of  consuls  and  of  diplomatic  a<;ents  are  pri- 
marily determined  by  statutes  and  treaties,  which  it  does  not  fall  within 
the  range  of  the  present  work  to  reproduce.  This  digest  i.s  routined  to 
the  rulings  of  the  executive  and  of  the  courts  in  thi.s  relation. 

"Another  series  of  treaties  grants  to  the  consuls  of  the  United  States 
in  the  territories  of  certain  Oriental  power.s,  excluhive  jurisdietion  over 
disputes  between  citizens  of  the  United  States,  or  over  oflen.ses  com- 
mitted by  citizens  of  the  U'nited  Srates,  or  both. 

"  The  first  statute  to  atlirm  and  regulate  tiiis  jurisdiction  was  approved 
on  the  11th  of  August,  1848.  (1>  Stat.  L.,  270.)  Attorney-Geneuil 
Cnshing  gave  an  exhaustive  opinion  on  this  statute  (hereafter  quoted). 
In  1860  a  new  statute  was  passed,  which  was  amended  in  1870.    (12  Stat. 

S.  Mis.  IGL'— VOL.  I .-.1  ^^ 


§  125.]  CONSULS.  [chap.  v. 

L.,  72.)  Under  tliese  various  statutes  the  following  is  the  pn  sent  con- 
dition of  the  law  and  practice  in  this  respect: 

''The  consuls  and  coiuniercial  agents  of  the  United  States  iit  islands 
or  in  countries  not  inhabited  by  any  civilized  people,  or  recognized  by 
any  treaty  of  the  United  States,  are  invested  with  ])Ower  to  hear  and 
determine  cases  in  regard  to  civil  rights  where  the  debt  or  damage  does 
not  exceed  $1,000  exclusive  of  costs;  and  also  toissue  warrants  to  arrest 
offenders,  to  arraign,  try,  and  convict  them,  and  to  punish  them  to  the 
extent  of  $100  fine  or  to  imi)risonmeut  not  to  exceed  sixty  days. 

"  The  i)rovisions  of  the  statute  of  1800  ai)ply  directly  to  the  consu- 
lates in  China,  Japan,  and  Siara.  They  apply  in  terms  to  Turkey  (see 
section  21  of  the  act  of  1800),  so  far  as  they  relate  to  crimes  and  offenses, 
and  as  to  civil  cases  so  fur  as  the  laws  of  Turkey  permit. 

"The  authenticity  of  the  English  version  of  the  treaty  of  1830  with 
Turkey,  under  which  exterritorial  rights  had  been  claimed  and  allowed, 
has  been  recently  questioned.  The  present  attitude  of  the  question  is 
set  forth  in  the  note  entitled  '  Ottoman  Porte.' 

"The  operation  of  the  statute  of  1860  is  extended  (§  28)  to  Persia,  to 
Tripoli,  Tunis,  Morocco,  and  Muscat  (§  29),  to  Egypt  (14  Stat.  L.,  322) 
and  all  other  countries  with  which  treaties  may  hereafter  be  made  (16 
Stat.  L.,  183). 

"The  jurisdiction  is  to  be  exercised  in  conformity  with,  1st,  the  laws 
of  the  United  States;  2d,  with  the  common  law,  including  equity  and 
admiralty;  and,  3d,  with  decrees  and  regulations,  having  the  force 
of  law,  made  by  the  ministers  of  tlie  United  States  in  such  country 
respectively,  to  supply  defects  and  deiiciencies  in  the  laws  of  the  United 
States,  or  the  common  law  as  above  defined. 

"This  power  of  the  ministers  to  make  such  laws  and  regulations  is 
limited,  byinstructionsfrpm  the  Department  of  State,  to  acts  necessary 
to  organize  and  give  efficiency  to  the  courts  created  by  the  act. 

"Mr.  Fish,  on  the  26th  of  February,  1873,  instructed  the  minister  at 
Japan,  on  this  subject  thus  :  '  The  authority  of  a  minister,  in  an  Oriental 
country,  to  make  regulations  having  the  force  of  law  within  the  country 
to  which  he  is  accredited,  is  derived  from  the  act  of  1860,  entitled  "An 
act  to  carry  into  effect  i)rovisions  of  the  treaties  between  the  United 
States,  China,  Japan,  Siam,  Persia,  and  other  countries,  giving  certain 
judicial  powers  to  ministers  and  consuls,  or  other  functionaries  of  the 
United  States  in  those  countries,  and  for  other  purposes." 

"  'The  fir«t  twenty-eight  sections  (except  the  21st)  relate  to  the  treat- 
ies referred  to  in  the  title.  The  remainder  of  the  act  refers  to  the 
*' other  purposes."  Sections  one,  four,  and  five,  therefore,  relate  exclu- 
sively to  the  subject  of  carrying  iuto  effect  treaty  provisions  conferring 
judicial  pon-c>'i^  o\\  ministers. 

"  'The  first  section  provides  that  'to  carry  into  full  effect  the  provis- 
ions of  the  trea*;ies,  &c.,  *  *  *  the  ministers  and  the  consuls  of  the 
United  States  duly  ai)p()inted  to  reside  in  each  of  the  said  countries 
shall,  in  addition  to  other  powers  and  duties  imposed  ui)on  them,  re- 
spectively, by  the  i)rovisions  of  such  treaty,  respectively,  be  invested 
with  the  judicial  author  it  ij  herein  described. ^^ 

"  'The  fourth  section  defines  how  those  powers  are  to  be  exercised, 
namely,  in  conlbrmity  with  the  laws  of  the  United  States,  "but  in  all 
cases  where  such  laws  are  not  adapted  to  the  object"  (/.  e.,  the  exercise 
of  such  judicial  powers),  "oi'  are  deficient  in  the  provisions  necessary  to 
furnish  svitoble  remedies,  the  common  law,  uK-kuting  eijuity  and  admi- 
ralty, shall  be  extended  in  like  manner  over  such  citizens  and  others  in 

802 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZED  LANDS.      [yS  I'iij. 

the  said  countries  ;  and  ifdofects  still  iviiiain  to  he  snpplii'd,  and  neither 
the  coniniOM  law.  includinfi^  equity  and  admiralty,  nor  llic  statutes  of 
the  United  States,  /Wrw/.sA  approiiriaic  and  suitable  rmirtlirs,  the  minis- 
ters in  the  sai<l  counties,  respectively,  shall  by  (h-ciees  an<l  re;,ndations, 
which  shall  have  the  Ibnte  of  law,  supply  sucii  defect  and  octicieiicies." 

"'The  fifth  section  provides  that  "?/i  order  to  orf/ttnize  o)hI  to  cfirri/  into 
effect  the  system  of  jurispnidencc  iUnmw.dvd  \)\  su(;h  treaties  respectively, 
the  said  ministers,  with  the  ad\i<'eof  the  s<'veral  consids  in  each  of  the 
said  countries  resi)ective!y,  or  so  many  of  them  as  can  i)e  conveniently 
assembled,  shall  prescribe  the  forms  of  all  |»rocesses  which  shall  be 
issued  by  any  of  said  consuls,  and  *  *  *  make  all  siieh  decrees 
and  regulations  from  time  to  tin)e  as  the  exigencies  may  demantl ;  and 
all  such  regulations,  decrees,  and  orders  shall  be  ])lainly  drawn  up  iu 
writing,  and  submitted  as  above  provided  for  the  advice  of  the  consuls, 
or  as  many  of  them  as  can  be  consulted  without  i)rejudicial  delay  or 
inconvenience,  who  shall  each  signify  his  assent  or  dissent  in  writing, 
with  his  name  subscribed  theieto;  and,  after  taking  such  advice  and 
considering  the  same,  the  minister  m  the  said  countries,  respectively, 
may,  nevertheless,  by  causing  the  decree,  ortler,  or  regulation  to  be  pub- 
lished, with  his  signature  thereto,  and  the  opinions  of  his  advisors  in- 
scribed thereon,  make  it  to  become  binding  and  obligatory  until  annulled 
or  modilied  by  Congress."     *     *     * 

•"It  is  the  opinion  of  the  Department  that  this  statute  confers  upon 
the  minister  in  Japan  no  authority  to  make  a  regulation  requiring  citi- 
zens of  the  United  States  to  register  their  names,  and  no  jiower  to 
enforce  such  a  regulation  judicially. 

'"The  authority  conferred  by  the  act  is  defined  in  the  lirst  section  to 
be  a  judicial  authority.  By  the  fourth  section  the  minister  is  recpiired 
to  execute  that  power  in  conformity  tcifh  the  lairs  of  ihc  United  States, 
with  authority  to  vary  from  those  laws  in  two  cases  only :  (1)  Where 
those  laws  are  not  adapted  to  the  exercise  of  the  judicial  authority  con- 
ferred by  section  one;  (2)  Where  they  are  deficient  in  the  provisions  to 
furnish  suitable  remedies.  In  each  of  these  contingencies  the  minister 
has  authority  to  make  regulations  in  order  ^' to  furnish  suitable  aud  appro- 
priate remedies,^^  and  for  Jio  other  purpose  whatever. 

'"The  fifth  section  is  still  more  explicit  on  this  jioint.  Every  power 
named  in  this  section  is  recited  to  be  conferred  upon  the  minister  "  m 
order  to  organize  and  carry  into  effect  asyston  of  jurisprudence.''" 

"The  jxnver  of  originating  civil  and  criminal  proceetlings  is  vested 
by  the  statute  in  consular  officers  exclusively. 

"They  can  also,  sitting  alone,  determine  all  criminal  cases  where  the 
line  imposed  does  not  exceed  live  hundred  dollars,  or  the  term  of  im- 
prisonment does  not  excee<l  ninety  days;  and  n>ay  impose  lines  to  the 
extent  of  fifty  dollars,  or  imprisonment,  not  exc«'eding  twenty-four  hours, 
for  contempt  committed  iu  the  presence  of  the  court,  or  tor  lailure  to 
obey  a  summons. 

"They  may  also,  when  of  opinion  that  legal  (pu-stions  may  arise  in 
which  assistance  may  be  useful,  or  that  a  severer  punishment  is  re(|uired, 
summon  associates,  not  more  than  four  in  number,  taken  by  lot  from  a 
list  to  be  previously  approved  by  the  minister,  to  sit  with  them  on  the 
trial,  each  of  whoin  is  to  enter  upon  the  record  his  judgment  and  opin- 
ion, and  to  sign  the  same;  but  the  consul  himself  gives  the  judgment 
in  the  case,  whether  it  accords  with  that  of  his  associates  or  not. 

"In  trials  for  capital  oft'enses  there  must  be  lour  associat(s.  who  must 
all  agree  with  the  consul,  in  order  to  convict,  and  the  opinion  must  be 
approved  by  the  minister  before  there  can  be  a  conviction. 

803 


§  125.]  CONSULS.  [chap.  v. 

"  Tbey  have  exclusive  jurisdiction  iu  civil  proceediugs  wliere  the  dam- 
age demanded  does  not  exceed  five  hundred  dolh.rs. 

"  When  the  amount  demanded  exceeds  five  hundred  dollars,  or  when 
the  consul  thinks  the  case  involves  legal  perplexities,  and  that  assist- 
ance will  be  useful,  he  may  summon  to  his  aid  not  less  than  two  nor 
Djore  than  three  associates,  to  be  selected  from  a  list  of  ])ersons  nomi- 
nated by  the  consul,  for  the  purposes  of  the  act,  to  the  minister,  ami  a^) 
proved  by  him.  Tbey  shall  hear  the  case  with  him.  The  consul,  how- 
ever, is  to  give  the  judgment.  If  they  agree  with  him,  the  judgment 
is  final.  If  they,  or  any  of  them,  disagree,  the  opinions  of  all  are  to  be 
noted  on  the  record  and  subscribed  by  them,  and  the  judgment  of  the 
consul  is  then  subject  to  appeal. 

"Such  a  consular  court  cannot,  in  a  suit  by  a  person  not  a  citizen  of 
the  United  States,  entertain  a  setolf  further  than  to  the  extent  of  the 
claim  asserted  by  the  plaintifl',  and  cannot  rentier  a  judgment  against  a 
person  of  foreign  birth  not  a  citizen  of  the  Unite  i  States.  (11  Op.,  474, 
Speed,  cited  ivfra.) 

"An  appeal  njay  be  taken  in  criminal  cases  from  a  decision  of  a  consul 
acting  al(Jne,  where  the  fine  exceeds  one  hundred  dollars,  or  the  time  of 
imprisonment  for  a  misdemeanor  exceeds  ninety  days. 

"If  associates  sit  with  the  consul  in  criminal  proceedings  (except 
ca])ital),  air  a])peal  can  ])e  taken  to  the  minister  only  in  case  of  disagree- 
ment between  him  and  one  of  his  associates. 

"  In  civil  proceedings,  in  cases  arising  before  the  1st  day  of  July,  1870, 
an  appeal  can  only  be  taken  to  the  minister  from  cases  in  which  asso- 
ciates sit  with  the  consul,  and  in  which  there  is  not  an  agreement  of 
opinion. 

"In  cases  arising  after  the  1st  day  of  July,  1870,  an  appeal  may  be 
taken  to  the  minister  from  final  judgment  in  the  consular  courts  of  China 
and  Japan,  where  the  matter  in  dispute  exceeds  five  hundred  dollars, 
but  does  not  exceed  two  thousand  five  hundred  dollars,  exclusive  of 
costs  ;  and  where  the  matter  exceeds  two  thousand  five  hundred  dollars, 
exclusive  of  costs,  the  appeal  may  be  taken  to  the  circuit  court  for  the 
district  of  California. 

"There  are  also  regulations  for  appeals  from  the  judgments  of  minis- 
ters to  the  circuit  court  of  California. 

"In  Tunis,  Morocco,  and  Tripoli,  citizens  of  the  United  States  com- 
mitting murder  or  houiicide  upon  a  subject  of  tliose  ])owers  are  to  be 
tried  by  a  mixed  court,  at  which  the  consul  is  to  'assist.' 

"The  undisputed  portion  of  the  fourth  article  of  the  treaty  of  1830 
with  the  Ottoman  Porte  provides  for  the  sni)ervisiou  of  the  A'Jierican 
dragoman  in  the  hearing  of  all  litigations  and  dis])utes  arising  between 
the  subjects  of  the  Sublime  Porte  and  citizens  ol  the  United  States. 

"It  is  not  in  dis])ute  that  the  usages  observed  towards  other  Franks 
are  to  be  observed  toward  ci*:izens  of  the  United  States.  These  usages 
are  believed  to  be  the  following: 

"1.  Turkish  tribunals  for  questions  between  subjects  of  the  Porte 
and  foreign  Christians. 

"2.  Consular  courts  for  the  business  of  each  nation  of  foreign  Chris- 
tians. 

"  3.  Trial  of  questions  between  foreign  Christians  of  different  nations 
in  the  consular  court  of  the  defendant's  nation. 

"4.  Mixed  tribunals  of  Turkish  magistrates  and  foreign  Christians 
at  length  substituted  in  part  for  cases  between  Turks  and  foreign  Chris- 
tians. 

804 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-('lVlLlZi:i)  LANDS.      [§  125. 

"5.  Finally,  for  causes  between  lon-ij^iiCliiistiiiiis,  the  substitution  at 
length  of  mixed  tribunals  in  i»la<;eot' the  sei)arate  (toiirts;  this  arraugo- 
ment  introduced  at  hist  by  the  legations  of  Austria,  (Ircai  liritain, 
France,  and  Kussia,  and  then  tacitly  acceded  to  by  the  legations  of 
other  foreign  Christians, 

"A  i)rovision  in  a  treaty  that  a  consul  may  exollicio  iulminister  iii>ou 
the  estates  of  citizens  of  his  nationality  «lying  within  his  jurisdiction 
without  legal  heirs  there,  gives  no  right  of  reclanialion  against  the 
United  States  for  the  value  of  the  i>ro])erty  of  such  a  decedent  itiiprop- 
erly  administered  on  by  a  State  court,  unless  the  consul  first  exhausts 
his  remedies  at  law  to  i)revent  such  Stat<'  adiuinislration." 
Mr.  .J.  C.  B.  Davis.     Notes,  »S:t-. 

'*  I  have  to  acknowledge  the  receii)t  of  your  dispatch  of  tlie  I'lst  of 
June  last,  No.  58. 

''  The  seventh  article  of  the  treaty  with  Jajian,  of  1858  (11»  Stat.,  1507), 
provides  that  certain  persons  convicted  of  felony,  or  twice  convicted  of 
misdemeanor,  shall  lose  their  right  of  permanent  residence  in  Japan, 
and  the  Japanese  authorities  may  require  them  to  leave  the  country. 
Our  consular  authorities  are  to  determine  a  reasonable  time  lor  the  con- 
vict to  settle  his  affairs, not  exceeding  one  year.  When  that  time  shall 
expire,  the  convict  becomes  an  outlaw,  not  entitled  to  any  of  the  benetits 
of  our  treaties  with  Japan.  Such  a  state  of  circumstances,  liowever,  if 
known,  will  be  apt  to  induce  the  convict  to  avoid  the  i)osi(ion  in  which 
the  treaty  between  the  two  countries  will  have  placed  him.  If  he  per- 
sists in  remaining,  this  Government  cannot  protect  him  against  the  con- 
sequences of  his  own  determination. 

"Consular  courts  have  arrogated  to  themselves  the  power  of  banish- 
ing American  convicts  to  the  United  States,  and,  as  in  the  instance  re- 
ported by  you,  to  China.  This  is  a  form  of  punishment  not  kiu)wn  to 
our  law,  and  if  it  has  been  overlooked,  it  has  not  been  approved  by  this 
Department. 

"  The  ])rinciples  upon  which  we  resist  the  deportation  of  foreign  crim- 
inals to  the  United  States,  and  which  may  well  esto})  us  from  .sending 
American  criminals  to  China,  do  not  appear  to  aflbrd  any  reason  why 
we  should  not  bring  home,  for  punishment,  our  citizens  who  have  been 
guilty  of  crime  upon  the  high  seas,  or  in  countries  where  we  reserve  the 
jurisdiction  for  trial  and  punishment  to  our  own  tribuiuils.'' 

Mr.  Fish,  Sec.  ofStatc,  to  Mr.  De  Loug,  Sept.  10, 1870.     MSS.  lnt>t.,  Japan.     For. 
Rel.,  1870. 

"  I  acknowledge  the  receipt  of  your  dispatches  (No.  87)  of  Septeinber 
19,  1870,  and  (No.  9G)  of  October  10,  1870 ;  the  first  inclosing  the  origi- 
nal manuscript,  and  the  second  a  i)rinted  coi>y  of  regulations  for  the 
consular  courts  in  Jai)an,  made  and  promulgated  by  you  with  tiie  a.sseiit 
of  our  consular  officers  in  that  Kingdom. 

"  I  regard  the  second  section  of  the  act  of  July  1, 1870  (Xew  Consular 
Regulations,  page  273,  No.  922),  as  intended  to  provide  for  the  estab- 

805 


§  125.]  CONSULS.  [chap.  v. 

lisliineut  of  regulations  iu  countries  where  we  have  no  diplomatic  rep- 
reseutatives,  aud  shall  therefore  submit  the  regulations  transmitted  by 
you  to  Congress  for  revision,  without  assuming  for  myself  the  power  or 
the  duty  of  disjipproving  or  amending  them.  I,  however,  think  it  my 
duty  to  call  the  attention  of  Congress  to  certain  of  the  regulations  which 
may  be  thought  to  transcend  the  authority  delegated  to  a  minister,  or 
that  of  the  Secretary  of  State,  in  countries  to  which  no  minister  is  ac- 
credited. 

'•  The  power  conferred  upon  a  minister  by  sections  o  and  G  of  the  act 
of  June  22, 1860  (New  Consular  Regulations,  Nos.  839  and  840),  has  been 
understood  by  this  Department  as  confined  to  the  course  of  jjrocedure 
iu  pursuing  judicial  remedies,  aud  us  not  extending  to  the  creation  of 
new  rights  or  duties  in  citizens  of  the  United  States,  or  to  the  modifica- 
tion of  personal  rights  and  obligations  under  the  existing  law.  You 
have  referred  to  the  embarrassment  arising  from  the  absence  of  a  com- 
mon law  of  the  United  States,  in  their  Federal  character,  and  the  diver- 
sities between  the  common  law,  as  adopted  and  interpreted  by  the  sev- 
eral States  and  as  modified  by  their  separate  legislation. 

"  This  difficulty  is  a  necessary  consequence  of  our  complex  system  of 
government.  If  it  can  be  obviated  at  all,  it  is  perhaps  only  by  the  opera- 
tion on  the  part  of  Congress  of  a  jurisdiction  over  citizens  of  the  United 
States  residing  in  unchristian  or  imperfectly  civilized  lands,  equivalent 
to  the  plenary  powers  with  which  it  is  invested  in  the  District  of  Colum- 
bia and  in  the  other  Territories.  This  Department  has  been  under  the 
impression  that  it  would  be  most  discreet  to  allow  the  anomalous  juris- 
diction of  our  consular  courts  in  such  countries  to  find  its  limits  and 
definition  from  the  practical  exigencies  of  administration  and  the  acqui- 
escence of  the  Governments  within  whose  territory  the  jurisdiction  is 
exercised. 

"A  report  made  to  Congress  by  ray  predecessor,  Mr.  Seward  (a  copy 
of  which  is  inclosed),  shows  that  it  has  been  the  habit  of  this  Department 
to  regard  the  judicial  power  of  our  consular  officers  in  Japan  as  resting 
upon  the  assent  of  the  Government  of  that  Kingdom,  whether  expressed 
by  formal  convention  or  by  tacit  acquiescence  in  the  notorious  practice 
of  the  consular  courts.  In  other  words,  they  were  esteemed  somewhat 
in  the  same  light  as  they  would  have  been  if  they  were  constituted  by 
the  Mikado  with  American  citizens  as  judges,  and  with  all  the  authority 
with  which  a  Japanese  tribunal  is  invested  in  respect  to  the  native  sub- 
jt'cts  of  Japan,  to  the  extent  that  our  Government  will  admit  a  jurisdic- 
tion understood  to  be  extremely  arbitrary.  They  were,  so  to  speak,  the 
agents  of  a  despotism,  only  restrained  by  such  safeguards  as  our  own 
Government  may  interpose  for  the  protection  of  citizens  who  come  within 
its  sway. 

"  Between  this  view  and  that  which  would  regard  our  consular  courts 
as  possessing  only  that  authority  which  has  been  conferred  upon  them 
in  express  terms  by  Congress  there  is  a  wide  margin.  Congress,  in- 
806 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CI VI  ll/KD   LANDS.      [§  125. 

formed  by  Mr.  Scwiud's  report  before  nientioiM-d  ot  tiie  ;ieiier:il  views 
which  had  obtained  in  this  l)e[)aitmeiit,  has  not  indicated  its(ns>ent  or 
concinrence,  except  by  silence.  It  is  possibh*  that  some  lutnre  appeal 
under  the  fifth  an<l  sixth  sections  of  tlie  act  of  .Inly  1,  bSTo,  may  h-ad 
to  a  judicial  determination  of  the  extent  of  consular  Jnrisdiction.  The 
communication  of  your  regulations  may  have  the  elfect  of  brinj^in;,'  the 
whole  subject  to  the  consideration  of  Conjiress,  ami  pi(»du<e  a  clear 
expression  of  its  views. 

•'Nearly  all  the  regulations  transmitted  by  you  are  re^rarded  as  clearly 
within  your  power  to  make,  and  to  carry  into  effect,  until  Con},ness  shall 
in<licate  its  pleasure  to  the  contrary.  They  relate,  with  few  exceptions, 
to  the  course  of  procedure  in  the  consular  courts,  and  so  far  as  they 
have  this  character  will  be  submitted  to  the  judj^nneut  of  Congress  with 
out  remarks  in  regard  to  the  expediency  of  their  adoption  i»r  their 
amendment.     Among  the  exceptions  are — 

"1.  The  first  regulation  requiring  the  registry  and  enrollment  of  citi- 
zens of  the  United  States  under  a  ])ecuniary  penalty  and  the  forfeiture 
of  right  to  the  protection  of  the  agents  of  this  Government  in  -lapan. 

"This  may  be  a  very  desirable  regulation,  but  it  will  be  subndtted  to 
the  judgment  of  Congress  whether  it  be  not  of  a  purely  legislative  char- 
acter, divesting  private  rights  in  a  manner  not  authorized  by  Congress, 
nor,  so  far  as  known,  b^'  the  Government  of  Ja])an. 

"2.  The  provisions  of  the  thirteenth  and  thirty-second  regulations  au- 
thorize judicial  proceedings,  by  summons  and  by  attachment  of  ])roi)erty 
against  citizens  not  residing  in  Jai>an.  It  is  not  even  required  in  terms 
that  they  shall  at  any  time  have  been  residents  of  the  Empire.  While 
it  may  be  that  the  jurisdiction  of  our  consular  courts  under  treaties  aiul 
usage  extends  to  the  property  of  Americans  in  Jai>an,  altliongh  they 
may  have  abandoned  their  residence  in  the  Kingdom  or  have  never 
resided  therein,  the  question  admits  of  such  doubt  as  to  call  Ibr  the 
determination  of  Congress. 

"3.  Regulation  No.  229  establishes  the  grounds  upon  w  hieh  divorce 
from  the  bond  of  matrimony  may  be  granted.  There  is  no  general  law 
of  divorce  enacted  by  Congress  for  the  Territories  under  its  exclusive 
jurisdiction,  and  the  State  laws  on  this  subject,  as  yon  are  aware,  have 
important  diversities.  The  rule  which  you  prescribe  for  the  dissolution 
of  marriage  may  be  very  different  from  that  prescribed  by  the  law  of 
the  State  in  which  the  parties  contracted,  and  which  may  be  sup|>08ed 
to  have  been  in  the  minds  of  both  of  them,  as  governing  their  marital 
relations.  The  effect  of  such  divorces  may  come  into  controversy  ui)on 
questions  of  legitimacy  of  inheritance,  even  of  bigamy,  in  every  State 
of  our  Union.  The  children  of  a  marriage  subsequent  to  the  divorce  of 
the  parents  in  Japan  may  be  allowed  to  inherit  in  one  State,  and  may 
be  bastardized  in  another,  unless  the  law  of  divorce  for  citizens  of  the 
United  States  in  Japan,  if  such  divorces  are  permitted  at  all,  shall  be 
fixed  by  an  authority  to  which  all  will  defer.    . 

807 


§  125.]  CONSULS.  [chap.  v. 

"4.  Regulation  No.  331  deelaivs  ;lie  ca.ses  tlitstiibufed  under  six  heads, 
iu  which  steamers  and  other  vessels  shall  be  subject  to  liens,  in  conse- 
quence of  contracts  and  torts  connected  wiih  their  outtit  and  naviga- 
tion. So  far  as  tliese  ;?r^  merely  athrmatory  of  general  i)rincii)les  of 
maritime  law  they  are  unobjectionable,  but  a  further  clause  of  the  regu- 
lation limits  the  continuance  of  such  Jien  to  one  year.  This,  even  if  it 
be  construed  as  merely  a  statute  of  limitation  for  actions  to  be  brought 
in  our  courts  in  Japan,  is  i)0sitive  legislation,  and  of  a  novel  character. 

"5.  The  sixth  regulation  in  regard  to  criminal  i)roceedings,  allowing 
the  testimony  of  an  absent  person  to  be  taken  and  used  in  criminal 
cases,  not  merely  as  against  the  Government,  but  against  the  accused, 
is  in  apparent  derogation  of  the  fourth  amendment  of  the  Constitution, 
which,  if  that  instrument  operates  upon  our  citizens  in  Japan,  secures 
to  the  accused  the  right  to  be  confronted  with  the  witnesses  against 
him.  In  any  event,  it  is  not  in  accordance  with  the  common  law  of 
England  or  of  any  of  the  United  States,  but  is  to  be  established  by 
legislative  authority.  The  same  is  true,  except  that  there  is  no  objec- 
tion growing  out  of  the  Constitution,  in  regard  to  the  thirteenth  regu- 
lation, allowing  a  person  charged  with  crime  to  testify  in  his  own  behalf. 

"  G,  The  twenty-second  regulation  of  criminal  proceedings  implies  that 
murder  is  distinguishable  into  three  or  more  degrees.  The  twenty-third, 
subjects  to  perpetual  banishment  a  person  guilty  of  felony,  and  the 
twenty-fourth  refers  to  the  rules  of  the  common  law  for  the  definition 
of  felonies  and  misdemeanors  Where  are  we  to  look  for  the  exposition 
of  the  common  law?  To  the  courts  of  Massachusetts,  or  to  those  of 
Georgia,  or  to  those  of  England?" 

Same  to  same,  Dec.  20,  1870;  Ibid.     Inclosure,  Senate  Ex.  Doc.  20,  40th  Cong., 
3d  sees. 

"  The  Ottoman  Government  and  that  of  Egypt  have  latterly  shown  a 
disposition  to  relieve  foreign  consuls  of  the  judicial  powers  which  here- 
tofore they  have  exercised  in  the  Turkish  dominions,  by  organizing  other 
tribunals.  As  Congress,  however,  has  by  law  provided  for  the  dis- 
charge of  judicial  functions  by  consuls  of  the  United  States  in  that 
quarter  under  the  treaty  of  1830,  1  have  not  felt  at  liberty  formally  to 
accept  the  proposed  change  without  the  assent  of  Congress,  whose 
decision  upon  the  subject,  at  as  early  a  period  as  may  be  convenient,  is 
earnestly  requested." 

President  Grant,  Fifth  Annual  Message,  1873. 

A  United  States  consul  in  China  has  no  jurisdiction  to  try  a  criminal 
charge  against  any  one  except  a  citizen  of  the  United  States. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Low,  Jan.  8,  1873.     MSS.  Inst.,  China. 

"  When,  however,  such  an  offender,  being  a  member  of  the  crew  of  an 

American  vessel,  is  a  subject  or  citizen  of  a  country  having  no  treaty 

engagements  on  this  question  with  China  or  Japan,  or  where  the  consul 

of  the  nation  to  which  such  person  may  belong  shall  decline  to  assume 

808 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILI/KD   LAJ  DS      [§  125. 

jurisdiction  over  him  for  tiic  olVciisc  diaij^rd  aj,Miiist  liim.  it  is  tin*  <);>in- 
iou  of  this  Department  tliat  the  ((.iisuhir  ollic-ers  of  iIm-  IihUmI  States 
may  properly  assume  Jiirisdictioii  in  the  ease. 

"In  reference  to  olfenses  eommittcd  on  shon-  in  China  iuid  .lai'an  i>y 
persons  enlisted  or  serving  on  hoard  national  vi-ssels  of  war,  jurisdic- 
tion in  such  cases,  in  the  opinion  of  iliis  Government,  should  Im'  re- 
mitted to  tl)e  consuls  of  the  country  under  whose  fla;;  the  olfctidcr  is 
serving,  on  the  ground  that  all  i)ersons  who  have  taken  serviei*  under  a 
power  are,  for  the  time  being,  under  the  jurisdiction  of  that  powi-r  ex- 
clusively and  amenable  to  its  tribunals. 

"Infornnition  has  reached  this  Department  that  the  ( Jovcrnment  of 
Great  Britain,  entertaining  these  views,  has  lately  issued  instructions 
to  its  authorities  in  China,  Ja]>an,  and  Siam,  to  a4)stain  from  interfer- 
ence with  British  subjects  serving  on  United  States  or  other  foreign 
men-of  war,  upon  the  ])rinciple  above  adverted  to,  and  you  are  in- 
structed in  like  manner  to  abstain  from  interference  with  citizens  of  the 
United  States  serving  on  board  British  or  other  foreign  vessels  of  war 
who  may  be  charged  with  the  commission  of  olfenses  on  shore.'" 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Aveiy,  Nov.  "2,  187;').     MSS.  Inst., 
China. 

" It  is  the  opinion  of  the  Department  that  the  consular  couits  are 
creatures  of  the  statute  creating  them.  Their  jurisdiction  is  Hmitcd 
strictly  to  the  subjects,  matters,  and  purposes  si)e(!i(ied  in  the  statutes, 
and  no  person  or  officer,  except  those  expressly  named  or  faiily  included 
within  the  terms  of  the  law,  can  exercise  the  j)ower8  or  functions  of  a 
judge  of  such  court.  The  act  of  the  22d  of  June,  1800,  to  carry  into 
efifect  the  treaty  between  the  United  States  and  China  says  :  'The  word 
consul  shall  be  understood  to  mean  any  person  invested  by  the  United 
States  with  and  exercising  the  functions  of  consul-general,  vice  consul- 
general,  consul,  or  vice-consul  in  any  of  the  countries  herein  named.' 
These  are  the  only  consular  officers  invested  with,  and  who,  under  the 
law  prior  to  the  revision,  could  exercise,  judicial  functions.  In  trans- 
ferring this  section  to  the  Revised  Statutes  the  words  '  vice-consul-gen- 
eral' were  omitted  (section  4130).  It  has  been  held  by  the  Department 
that  this  omission  excludes  that  officer  from  the  right  to  exercise  judi- 
cial functions,  and  consuls-general  in  China,  Jaj)an,  and  Turkey  have 
been  so  instructed." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Seward,  Jan.  VJ,  187(i.     MS.S.  Inwt.,  China. 

Although  not  required  by  our  treaty  with  China,  the  Department,  in 
1877,  gave  a  general  expression  of  approval  to  "the  recommendation  of 
the  presence  of  consular  officers  of  their  own  nationality  in  the  crimi 
nal  trial  of  Chinese  where  the  sufferer  is  a  foreigner,  and  of  allowing  a 
Chinese  officer  to  be  present  at  the  trial  of  foreigners  where  a  Chinese 
is  the  sufferer." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Seward,  Feb.  14,  1877.     MSS.  Inst.,  China. 

809 


§  125.]  CONSULS.  [chap.  v. 

Ill  tLie  lu-actice  of  the  mixed  courts  sittiug  in  China  the  apphcation  of 
torture  to  force  witnesses  to  tejitify  cannot  be  permitted,  although  sanc- 
tioned by  Chinese  hiw,  i)ut,  on  the  orher  hand,  such  proper  discipline 
as  may  be  requisite  in  the  way  of  imprisonment  or  otherwise  may  be 
applied. 

Mr.  Hay,  Asst.  Sec.  of  State,  to  Mr.  Angell,  Aug.  16,  1880.     MSS.  lust.,  China. 

The  question  here  involved  is  one  of  great  difficulty.  In  England 
and  in  the  United  States  a  witness  who  refuses  to  testify  is  imprisoned 
until  this  refusal  is  withdrawn,  but  in  China  our  consular  courts  have 
no  means  of  enforcing  an  order  of  indefinite  imprisonment,  and  to  hand 
the  contumacious  witness  over  to  a  Chinese  prison  would  be  to  hand 
him  over  to  torture,  of  which  Chinese  prison  discipline  largely  consists. 
Yet,  without  the  power  of  compelling  the  giving  of  testimony,  no  court 
of  justice  can  be  efficiently  conducted.  It  must  be  conceded  that  a  con- 
sul cannot  direct  a  witness  to  be  tortured,  either  by  his  own  direct  order 
or  through  the  agency  of  Chinese  officials.  Yet,  if  he  does  not  exercise 
such  power,  whether  a  witness  shall  testify  at  all,  or  what  limit  is  to  be 
imposed  on  his  testimony,  will  have  to  be  determined  by  himself. 

The  only  criminal  cases  in  Japan  in  which  under  our  statutes  there  is 
an  appeal  from  the  consular  courts  to  the  minister  are  those  in  which 
the  punishment  is  capital. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Bingham,  Oct.  7, 1880.     MSS.  Inst.,  Japan. 

The  punishment  in  non-capital  cases  "should  conform  to  that  pre- 
scribed by  the  laws  of  the  United  States  for  similar  offenses." 
Ibid. 

"I  have  the  honor  to  acknowledge  the  receipt  of  the  note  which,  by 
direction  of  Earl  Granville,  you  addressed  to  this  Department  on  the 
20th  of  August  last,  in  relation  to  the  modification  and  continuance  of 
the  tribunals  of  the  reform  in  Egypt,  after  the  expiration  of  the  exist- 
ing quinquennial  period  on  the  1st  of  February  next. 

"The  circular  of  the  Egyptian  minister  of  foreign  attairs,  of  May  30, 
1880,  to  which  his  lordship  refers,  was  received  by  this  Government  in 
due  course,  and  has  had  the  attention  which  is  due  on  the  part  of  the 
United  States,  as  one  of  the  parties  to  the  original  scheme  of  constitut- 
ing the  tribunals  of  the  reform  which  it  is  now  proposed  to  change  by 
means  of  a  deliberative  commission  to  be  appointed  ad  hoc.  The  result 
of  a  detailed  examination  has  led  this  Government  to  conclusions  which 
are,  in  the  main,  identical  with  those  of  Her  Majesty's  Government,  as 
communicated  to  you  by  Earl  Granville.  It  accepts,  in  principle,  the 
proposal  of  the  Khedival  Government,  that  an  international  commission 
of  delegates  from  the  several  powers  which  joined  in  the  institution  of 
the  existing  tribunals,  should,  with  as  little  delay  as  possible,  consider 
and  report  to  the  powers  upon  such  modifications  as  may  appear  to  be 
expedient  or  necessary  in  the  constitution  of  the  tribunals  of  the  -reform, 
and  in  their  procedure  and  their  administration  of  the  law,  as  well  as 
in  the  law  itself  as  framed  by  them,  so  long  as  such  modification  shall 
810 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SKMI-CI VI 1  I/.KI )  LANDS.      [^  125. 

place  \hv  jiuJiciiil  ;Hlmiiii,sii;itioii  of  ll;:v|»!  on  ;i  li;isis  no  less  favoial)le 
than  the  i)resfnt  one  tor  scciii  iii^  to  citizi-iis  of  tlic  United  StatfH  in  IIi8 
Hi^hness's  (U)minions  tlic  same  iiiipiirtial  justice  tliry  «'nj(>yc<l  uiidcr  flic 
exercise  of  judicial  fiiuctioiis  hy  the  diploinatii-  and  consnhir  olliccis  of 
the  United  States  in  those  dominions  prcx  ions  to  tiic  insliiniion  of  the 
reform  tribunals. 

"This  Government  will,  tlicrcforc,  appoint,  ai  as  eaily  a  day  .is  po-s; 
ble,  two  delegates,  one  of  whom  shall  be  principal  and  tin-  other  asso- 
ciate, with  the  same  functions  as  liUe  adjunct  dele<;ates  of  the  other 
])Ovvers,*  to  represent  the  United  States  in  the  proposed  comiidssion. 

"This  Government  shares  the  views  tif  that  of  Her  nritannie  .Majesty 
with  respect  to  the  future  admission,  if  it  be  found  expedient,  of  dele- 
gates or  other  powers  than  those  which  united  in  establishing  the  ex- 
isting judicial  system  of  I'^gypt.  It  likewise  concurs  in  the  opinion 
that  the  formation  of  a  subcommittee  is  a  mattei-  jjrojierly  within  the 
discretion  of  the  commission  itself. 

"The  question  of  the  extension  of  tlie  ])resent  (piincpiennial  jieriod  to 
cover  the  time  which  may  possibly  elapse  before  the  modihcations  to  be 
adopted  can  become  operative,  being,  so  far  as  the  United  States  are 
concerned,  one  for  the  discretion  of  the  executives,  this  Government  is 
prepared  in  this  matter  also  to  accede  to  the  proposal  of  the  Govern 
meut  of  His  Highness  the  Khedive.     The  question  of  the  appoiiiment 
of  the  present  foreign  judges  to  like  jdaces  in  the  reorganized  tribunals, 
being  i)roperly  one  for  the  consideration   of  each  of  the  appointing 
powers,  it  is  conceived  that  no  rigid  rule  should  be  adojitcd  by  the 
commission  with  respect  to  such  appointments.     It  may  thus  be  expc 
dient  to  provide  that  the  continuance  of  the  present  judges  through 
whatever  extended  term  may  be  re(piisite  belbre  the  i)roi»osed  moditi 
cations  can  take  effect,  shall  not  necessarily  imply  renewal  of  their  ex- 
isting contracts  with  the  Egyptian  Government  for  a  fixed  quinquen 
nial  or  other  period,  but  shall  bo  simply  for  the  time  needful  to  eflect 
the  contemplated  changes." 

Mr.  Hay,  Acting  Sec.  of  State,  to  Mr.  Druniinoud,  Oct.  26,  1880.     MSS.  Notes, 
Gr.  Brit.;  For.  Rl-1.,  1880. 

"  When  commercial  relations  and  general  intercourse  were  opened  to 

foreign  nations  and  extended  by  the  liberality  of  the  Chinese  and  Jap 

anese  Empires,  it  became  evident  that  the  seamen  and  citizens  of  these 

foreign  powers  could  not  safely  be  subjected  to  the  local  authorities. 

The  arbitrary  jurisdiction  of  their  courts,  more  executive  than  judicial, 

the  custom  of  torturing  witnesses  to  compel  their  testimony,  the  extreme 

and  cruel  punishments  indicted  even  for  comparatively  sli;4ht  oflenses, 

the  difficulties  of  language  and  the  utter  incompatibility  of  habits  of 

thought  on  all  legal  and  moral  (piestions,  made  it  impo.><sible  to  trust 

the  persons,  the  property,  and  the  lives  of  our  own  people  to  such  a 

iurisdictiou.  

•^  811 


§  12.5.]  CONSULS.  [chap.  v. 

"  This  was  recoguized  oy  the  Governmeuts  of  China  and  Japan,  and 
tbey  consented  to  transfer  the  necessary  judicial  authority  which,  in 
their  own  tenitory,  would  otherwise  unquestionably  have  been  exclu- 
sive to  the  consular  officers  of  such  foreign  powers  as  were  willing  to 
negotiate  treaties  to  that  effect. 

"By  Article  IV  of  the  treaty  of  Siuiod;i,  1857,  and  Article  VI  of 
the  treaty  of  Yeddo,  1858,  both  negotiated  l)y  the  same  minister,  it  is 
provided  that: 

'"Americans  committing  offenses  in  Japan  shall  be  tried  by  the  Amer- 
ican consul-general  or  consul,  and  shall  be  punished  according  to  Amer- 
ican laws,'  and  'Americans  committing  offenses  against  Japanese  shall 
be  tried  in  American  consular  courts,  and  when  guilty  shall  be  punished 
according  to  American  law,'  thus  providing  for  the  trial  of  all  offenses 
committed  b^'  Americans  in  Japan  by  the  consular  courts  of  the  United 
States. 

"  The  same  principle,  as  I  understand,  is  secured  by  treaty  to  the  sub- 
jects of  Her  Britannic  Majesty. 

"  Under  these  jiro visions  no  difference  can  arise.  Under  them,  clearly, 
the  test  of  jurisdiction  is  nationality.  An  offense  committed  anywhere 
in  Japan,  except  on  a  foreign  man-of-war  or  within  the  precincts  of  a 
foreign  legation,  which  are  extraterritorial,  if  committed  by  an  English 
subject  resident  in  Japan  is  justiciable  before  the  British  courts;  if 
committed  by  an  American  citizen  resident  in  Japan,  is  justiciable  in 
the  consular  courts  of  the  United  States. 

"  But  there  is  a  class  of  people  who  are  not  residents  of  Japan  in 
the  ordinary  acceptance  of  the  term,  and  who  are  not  protected  by  the 
extraterritorial  character  of  the  vessel  on  which  they  serve.  They  are 
the  seamen  of  the  mercantile  marine,  and  they  are  specially  recognized 
by  Article  IX  of  the  treaty  of  1858,  which  provides  : 

"  '  When  requested  by  the  American  consul,  the  Japanese  authorities 
will  cause  the  arrest  of  all  deserters  and  fugitives  from  justice,  receive 
in  jail  all  persons  held  as  prisoners  by  the  consul,  and  give  to  the  con- 
sul such  assistance  as  may  be  required  to  enable  him  to  enforce  the 
observance  of  the  laws  by  the  Americans  who  are  on  land,  and  to  main- 
tain order  among  the  shii)ping.' 

'•  And  in  view  of  this  provision,  the  Government  of  the  United  States, 
which  authorizes  the  enrollment  in  every  American  merchant  ship  of  a 
certain  number  of  seamen  who  are  not  citizens,  has  enacted  in  the  act 
providing  for  the  execution  of  this  treaty,  as  follows : 

"  '  Jurisdiction  in  both  criminal  and  civil  matters,  shall,  in  all  cases, 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which  are  hereby,  so  far  as  is  necessary  to  execute  such  treaties, 
respectively,  and  so  far  as  they  are  suitable  to  carry  the  same  into 
effect,  extended  over  all  citizens  of  the  United  States  in  those  countries, 
and  over  all  others  to  the  extent  that  the  terms  of  the  treaties  respect- 
ively, justify  or  require.'  (Section  48S6,  Eev.  Stat.) 
812 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZKD  LANDS.      [§  125. 

"  The  position  taken  by  the  GoverniiMMit  of  the  Ciniid  States  in  this 
legislation,  under  the  articles  of  the  treaty,  is,  tliat  a  loteif^n  seaman 
duly  enrolled  on  an  Anierieun  nu-rcliant  vessel,  is  subjeet  to  the  hiws 
and  entitled  to  the  i)rotection  of  the  United  States  to  precisely  ilie  same 
extent  that  a  native-born  seaman  would  he,  durinj,'  tiie  period  of  his 
service;  that  althouj;!i  not  an  American  citizen,  lie  is  unquestionably 
an  American  seaman.     *     *     * 

"  When  a  foreigner  enters  the  mercantile  marine  of  any  nation  and 
becomes  one  of  the  crew  of  a  vessel  having  undoubtedly  a  national 
character,  he  assumes  a  temporary  allegiam  e  to  the  Hag  under  which 
he  serves,  and  in  return  for  the  i)rotection  a  Horded  him  becomes  subject 
to  the  laws  by  which  that  nation,  in  the  exercist;  of  nn  un(piestioned  au- 
thority, governs  its  vessels  and  seamen.  If,  therefore,  the  (jovernmetit 
of  the  United  St;ites  has,  by  treaty  stipulation  with  Japan,  ac<iuire(l  tin* 
privilege  of  administering  its  own  laws  ujjon  its  own  vessels  and  in 
relation  to  its  own  seamen  in  .J.ipiinese  territory,  then  every  American 
vessel  and  every  seaman  of  its  crew  are  subject  to  the  Jnrisdiction  by 
which  such  treaty  has  been  transferred  to  the  Government  of  the  Uintetl 
States." 

Mr.  Blaine,  Sec.  of  State,  to  Sir  E.  Thoruton,  June:!,  l^y-^l.     .M.S.S.  Notes,  Gr. 
Brit. 

"The  intimacy  between  our  own  country  ami  .I;ipan,  tlie  most  ad- 
vanced of  the  Eastern  nations,  continues  to  be  cordinl.  I  am  advised 
that  the  Emperor  contemplates  the  establishment  ol  full  constitutional 
government  and  that  he  has  already  summoned  a  parliamentary  con- 
gress for  the  ])urpose  of  effecting  the  change.  Such  a  remarkable  step 
toward  complete  assimilation  with  the  Western  system  cannot  fail  to 
bring  Japan  into  closer  and  n»ore  beneficial  relationship  with  ourselves 
as  the  chief  Pacific  power. 

"A  question  has  arisen  in  relation  to  the  exercise  in  that  country  of 
the  judicial  functions  conferred  upon  (uir  ministers  and  consul.s.  The 
indictment,  trial,  and  conviction  in  the  consular  court  at  Yok(>liama  of 
John  Ross,  a  merchant  seaniHU  on  boaid  an  AmerM-an  vessel,  have 
made  it  necessary  for  the  Government  to  institute  a  careful  examina- 
tion into  the  nature  and  methods  of  this  jurisdiction. 

"  It  appeared  that  IJoss  was  regularly  shipped  under  the  tlag  of  the 
United  States,  but  was  by  birth  a  British  subject.  My  predcces.sor  felt 
it  his  duty  to  maintain  the  position  that,  (luring  his  .service  as  a  regu- 
larly shipped  seaman  on  board  an  AnuMican  meichant  ves.sel,  Koss  was 
subject  to  the  laws  of  that  service,  and  to  tin- jniis<liction  ol  the  United 
States  consular  authorities." 

President  Arthur,  First  Annual  Messa.ne,  18-*1. 

A  seaman  duly  enrolled  in  a  meichant  vessel  of  the  United  States, 
lying  in  the  port  of  Yokohama,  and  wiio  there  was  guilty  of  murder,  is 

813 


§  125.]  CONSULS.  [chap.  v. 

within  the  jurisdiction  of  the  United  States  consul  at  that  port,  and 
may  be  convicted  of  such  crime,  althon<ih  he  was  at  the  time  a  British 
subject. 

Mr.  Blaino.  Sec.  of  State,  report  to  President,  Dec.  19,  18dl.     M.SS.  Report  Book. 

As  to  cousnlar  jurisdiction  in  such  case,  see  supra,  §  124 ;  as  to  jurisdiction 
generally,  see  supra,  §$  35,  3.5fl. 

On  December  19,  1881,  President  Arthur  sent  to  the  Senate  a  rei)ort 
of  Mr.  Blaine,  Secretary  of  State,  on  "■  the  present  system  of  consular 
jurisdiction."  Mr.  Blaine,  in  this  opinion,  comments  adversely  on  the 
constitutionality  as  well  as  policy  of  .section  4083^.,  Revised  Statutes. 
He  advises  the  establishment,  in  place  of  the  consular  courts,  of  purely 
judicial  tribunals.  As  showing  the  inadequacy  of  native  tribunals  for 
this  purpose  he  says:  ''In  China,  as  in  uearlj'  all  the  countries  of  the 
East,  where  extraterritoriality  of  jurisprudence  obtains,  there  is  no  ade- 
quate system  of  native  jurisprudence  to  serve  as  a  basis  for  a  mixed 
tribunal,  and  little  or  no  indicatioa  that  the  native  Governments  appre- 
ciate the  insufficiency  of  their  codes  or  are  disposed  to  move  for  a  re- 
form therein.  I  may  remark,  nevertheless,  that  in  Japan  the  case  is 
different.  The  rapid  assimilation  ot  the  native  methods  of  that  Empire 
to  Western  standards  makes  the  creation  of  an  international  court  there 
a  probability  in  the  near  future." 

Mr.  Blaine,  Sec.  of  State,  report  to  President,  Dec.  19, 1881.     MSS.  Report  Book. 

"  I  have  the  honor  to  bring  to  your  attention  the  inclosed  copy  of  jV 
letter  of  the  3d  ultimo,  from  Stephen  P.  Mirzan,  praying  for  a  pardon. 

''The  story  of  the  crime  may  be  briefly  stated  as  follows:  On  the 
17th  of  July,  1879,  Alexander  Dahan,  a  distinguished  lawyer  and  es- 
teemed gentleman,  met  Stephen  P.  Mirzan  in  the  streets  of  Alexandria, 
Egypt,  where  they  had  angry  words  and  finally  came  to  blows,  Mirzan 
striking  Dahan.  Dahan  ran  away,  fleeing  through  a  corner  book-store, 
in  at  one  door  and  out  at  another,  closely  pursued  by  Mirzan,  who,  as 
Dahan  passed  out  of  the  second  door,  shot  him  through  the  back  of  the 
head,  the  ball  coming  out  through  the  forehead.  Dahan  died  instantly. 
He  was  a  subject  of  Turkey.  * 

"  Mirzan  was  tried  at  Alexandria  before  the  late  Horace  Mnynard, 
then  minister  of  the  United  States  to  Turkey,  convicted  of  murder  iu 
the  first  degree  June  12,  1880,  and  sentenced  to  be  hanged  October  1, 
1880. 

"  President  Hayes  commuted  this  sentence  to  life  imprisonment  in  an 
American  prison  at  Smyrna.     This  commutation  is  dated  July  29, 1880. 

"  The  .3d  of  August,  3882,  President  Arthur  directed  that  Mirzan  be 
brought  to  Albany  and  that  the  remainder  of  his  sentence  be  served 
out  at  the  penitentiary  at  that  capital.  He  was  accordingly  trans- 
ported thither,  where  he  is  now  confined. 

"Of  the  legality  of  Mirzan's  trial  and  conviction  there  can  be  no 
doubt,  as  both  your  Department  and  the  higher  courts  of  this  country 
814 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZED  LANDS.     [§  125. 

have  affirmed  and  rec()<iiiizt*(l  our  cxtiatciTitoiial  juii.sdictiou  in  such 
cases  under  our  statutes. 

"Although  numerously  si^ntd  petitions  for  Mir/.iiii's  panhtn  have 
reached  this  Governnient,  Presi(h*nts  Jlayes  and  Arthur  liave  carli  de- 
clined to  exercise  their  prerogative  except  as  previously  stated. 

"  Mrs.  Marie  Antoinette  Mirzan,  wife  of  Stephen  P.  Mir/.an,  lias  aUo 
sought  on  frecjueut  occasions  to  have  her  husband  i)ardone(l.  In  leply 
to  one  of  her  letters  Mr.  l>laiiie,  Secretary  of  State,  wrote,  Noveniher  14, 
1881,  as  follows: 

"  'I  am  directed  by  the  President  to  express  his  regret  that  n()thing 
in  your  husband's  case,  in  his  judgment,  calls  for  the  exercise  of  the 
President's  prerogative  further  for  his  relief.  A  full  review  of  the  case 
was  made  by  President  Garfield,  which  resulted  in  finding  no  ground 
for  extending  clemency  beyond  the  commutation  of  the  death  penalty 
decreed  by  the  court  ;  and  nothing  has  since  then  been  adduced  to  lead 
President  Arthur  to  modify  the  conclusions  reached  by  his  i)redecessor.' 

'•  On  the  20th  of  January,  18813,  Mr.  Frelingliuysen,  late  S«'cretaiy  of 
State,  in  a  letter  to  Mrs.  Mirzan,  adhered  to  the  conclusions  of  the  De. 
jiartmeut's  previous  letter  of  November  14,  1881.     He  also  said  : 

" '  The  Piesident,  however,  desires  me  to  add  that  when  a  longer 
time  shall  Iuiac  elapsed  from  the  conviction  of  your  husband  of  the  very 
grave  offense  with  which  he  was  charged,  you  may  feel  at  liberty  to 
renew  the  application,  supported  by  such  recommendations  from  the 
l)rison  officers  and  peojde  of  Synirna  as  you  may  be  able  to  obtain,  and 
that  the  subject  w^ill  then  receive  renewed  and  serious  consideration.' 

"On  January  14,  1883,  Mr.  Frelingliuysen.  writing  to  Mirzan,  .stated 
that  the  President  did  not  feel  justified  in  further  interfering  with  the 
course  of  justice. 

"The  question  of  Executive  clemency  would  appear  to  be  the  only 
one  open.  As  to  this,  however,  it  may  incidentally  be  remaiked  that 
the  main  objection  to  Presidential  clemency  being  accorded  is  that  it 
would  undoubtedly  have  an  injurious  effect  on  our  treaty  discussion 
with  the  Government  of  Turkey,  of  which,  as  stated,  Dalian  was  a  sub- 
ject. Turkey  would  doubtless  make  use  of  Mirzan's  jiardon  as  an  ovi 
deuce  that  this  Government  favored  its  citizens  even  when  appearing 
to  try  them. 

"While  doubtful  of  the  ex])ediency  of  a  pardon  or  reduction  of  sen 
fence  at  this  time,  less  than  six  years  from  the  commission  of  the  mur 
der,  yet  I  have  no  desire  to  interfere  with  Mirzan's  aj>i)licat.«)n  having 
the  fullest  possible  consideration,  and  upon  receiving  an  intimation 
from  you  that  you  desire  to  give  attention  to  his  jietition,  with  a  vi«'w  to 
a  decision  on  its  merits  in  connect.iou  with  his  conlineinent.  and  a  re 
port  from  the  prison  authorities  at  Albany,  as  foreshadowed  by  Mr. 
Freliughuysen,  I  shall  take  jdeasure  in  luinishing  you  with  such  copies 
of  the  record  in  Mirzan's  case  as  may  be  necessary  to  a  fuller  and  more 
complete  understanding  of  the  subject. 

815 


§  125  ]  CONSULS.  [chap.  v. 

"I  Lave  delsiyed  responding  to  Mirzan's  letter  until  I  shall  be  ap- 
prised of  the  decision  of  your  De})artnient  in  the  premises." 

Mr.  Bayard,  Sec.  of  State,   to  Mr.  Garland,  Atty.  Gen.,  June  Id,  18^:).     MSS. 
Doui.  Let. 

''  Your  letter  of  the  21st  instant  has  been  received.  It  relates  to  the 
case  of  J.  M,  Eoss,  alleged  to  be  a  British  subject,  who,  having  in  1880 
killed  a  fellow  sea nnin  named  llobert  Kelly,  on  the  American  ship 
Bullion,  in  the  harbor  of  Yokohama,  was  tried  by  the  United  States 
consular  court  there,  convicted,  and  sentenced  to  death,  which  penalty 
was  later  commuted  by  the  President  to  imprisonment  for  life  in  the 
Albany  penitentiary,  where  Boss  is  now  conlined. 

"  You  state  thnt  Boss  '  wishes  to  have  his  case  reviewed  on  the  ground 
that  the  court  had  not  jurisdiction  of  his  person,  he  being  then  and  now 
a  British  subject.' 

"  The  question  of  jurisdiction  in  Boss's  case  has  already  had  full  con- 
sideration on  two  pleas — want  of  jurisdiction  of  his  person  and  uncou- 
stitutiouality  of  the  form  and  manner  of  trial.  The  latter  plea,  being 
of  municipal  competence,  was  before  the  circuit  court  of  San  Francisco 
on  a  writ  of  habeas  corpus,  sued  out  by  Eoss  on  reaching  that  port,  on 
his  way  from  Yokohama  to  Albany,  April  4,  1881,  and  the  court  dis- 
missed the  writ.  The  constitutionality  of  the  judicial  extraterritorial 
procedure  prescribed  by  statute  under  the  authority  of  the  treaty  is 
established.  This  branch  of  the  question  can  be  municipally  tested 
by  being  brought  before  the  United  States  courts  by  habeas  corpus. 

"  The  plea  that  Eoss,  being  an  alien,  was  beyond  the  "jurisdiction  of 
the  consular  court,  was  raised  by  the  British  Government.     *     *     * 

"  This  Government  denied  the  plea  on  the  admitted  doctrine  that  the 
sov^ereign  of  the  flag  of  a  ship  has  jurisdiction  of  crimes  committed  by 
foreigners  on  such  ship  on  the  high  seas  or  in  i)orts  where  the  courts  of 
the  United  States  have  jurisdiction,  and  that  Eoss,  being  a  duly  arti- 
cled seaman  on  an  American  ship,  was  within  the  statutory  and  treaty 
jurisdiction  of  the  United  States  court  at  Yokohama.  If  this  phase  of 
the  question  is  to  be  revived,  it  can  only  be  presented  by  the  British 
Government  through  the  diplomatic  channel." 

Mr.  Porter,  Asst.  Sec.  of  State,  to  Mr.  Stimson,  June  28,  1886.    MSS.  Dom.  Let. 

"  By  treaty  stipulations  with  most  non-Christian  countries,  the  United 
States  has  acquired  a  right  of  extraterritoriality. 

"Congress  has  enacted  certain  statutes  for  carrying  into  effect  the 
provisions  of  treaties  in  this  respect  by  conferring  judicial  powers  upon 
consular  officers  and  original  or  iippellate  jurisdiction  upon  diplomatic 
agents.  These  statutes  are  embraced  in  sections  4083  to  4130,  inclusive, 
of  the  Eevised  Statutes.  It  is  the  duty  of  all  diplomatic  agents  in  those 
countries  to  acquaint  themselves  with  these  provisions  of  law. 

"For  the  convenience  of  the  diplomatic  agent,  certain  particulars 
concerning  his  original  -powers  and  functions,  and  his  advisory,  super- 
visory, or  appellate  relations  to  consular  otlicers  exercising  extra  terri- 
torial jurisdiction  in  the  same  country,  are  herein  given,  premising  that 

SIO 


CHAP,  v.]     JUDICIAL  FUNCTIONS  IN  SEMI-CIVILI/KD  LANDS.      [§  125. 

our  legislation  on  the  subject  is  in  a  very  unsatisfactory  and  uncertain 
condition,  which  Congress  has  been  asked  to  remedy. 

"The  jurisdiction  of  both  ministers  and  consuls  in  criniinai  and  civil 
matters  is  to  be  exercised  in  conformity,  1st,  with  the  laws  of  the  United 
States;  2d,  with  the  common  law,  equity,  and  admiralty;  and  3d,  with 
decrees  and  reguhitions,  *  *  *  made  by  tiie  ministers  of  the  United 
States  in  each  country,  res])ectively,  to  supply  defects  an<l  deliciencies  in 
the  laws  of  the  United  States,  or  the  coiiunon  law  as  above  de(im'<l. 

"This  i)Ower  of  the  minister  to  make  laws  and  rei;ul:itions  is  limited, 
by  construction  of  the  Department,  as  not  imparting-  to  him  an  ai  bitiary 
l)Ower  of  legislation,  but  as  remedial  and  coiitined  to  acts  necessary  to 
organize  and  give  efficiency  to  the  courts  created  by  the  act. 

"The  authority  conferred  by  the  statute  is  defined  to  be  nju/lii  inl  an 
thority.  The  minister  is  required  to  execute  the  i)ow('r  in  conformitif 
icith  the  laics  of  the  United  States,  with  authority  to  supjjjy  defects  and 
deficiencies  in  two  cases  only  :  (1)  Where  those  laws  are  not  adajned  to 
the  exercise  of  the  judicial  authority  conferred  by  the  statute,  (L')  Where 
they  are  deficient  in  provisions  to  furnish  suitable  remedies.  In  each 
of  these  contingencies  the  minister  has  authority  to  make  regulations  in 
order  '  to  furnish  stdtable  and  appropriate  remedies,^  and  for  no  other 
jmrpose  whatever.  Every  power  named  in  the  statute  in  this  respect  is 
conferred  ui)on  the  minister,  Hn  order  to  organize  and  carry  into  effect  the 
system  of  jurisprudence.'' 

"  It  is  provided  that  the  ministers  shall  ])resciibe  the  forms  of  all  proc- 
esses to  be  issued  from  the  consular  courts,  the  mode  of  executing  and 
the  time  of  returning  the  same;  the  manner  in  which  trials  shall  be  con- 
ducted, and  how  the  records  thereof  shall  be  kept ;  the  form  of  oaths  for 
Christian  witnesses,  and  the  modeof  examining  all  other  witnesses;  the 
costs  to  be  allowed  to  the  i)revailing  party,  and  the  fees  to  be  paid  for 
judicial  services;  the  manner  in  which  all  officers  and  agents  to  execute 
process  shall  be  appointed  and  paid;  the  form  of  bail  bonds,  and  the 
security  which  shall  be  required  from  the  i)arty  who  api)eals  from  the 
decision  of  a  consul.  He  is  required  to  make  from  time  to  time  such 
further  decrees  and  regulations  as  may  be  necessary.  It  is  his  duty  also 
to  establish  a  tariff  of  fees  for  judicial  services,  to  be  paid  by  such  par- 
ties and  to  such  })ersons  as  he  shall  direct. 

"  The  statute  further  i)rovides  that  all  such  regulations,  decrees,  and 
orders  shall  be  i)lainly  drawn  up  in  writing,  and  submitted,  as  hereinbe- 
fore provided,  for  the  advice  of  the  consuls,  or  as  many  of  then)  as  can  bo 
consulted  without  prejudicial  delay  or  inconvenience,  and  each  consul 
shall  signify  his  assent  or  dissent  in  writing,  with  his  name  subscribed 
thereto.  After  taking  such  advice,  and  considering  the  same,  the  min- 
ister in  each  of  those  countries  may,  nevertheless,  by  causing  the  decree, 
order,  or  regulation  to  be  i)ublished  with  his  signature  thereto,  and  the 
opinions  of  his  advisers  inscribed  thereon,  make  it  binding  and  obliga- 
tory, until  annulled  or  modified  by  Congress;  and  it  shall  take  ellect 
from  the  publication  or  upon  any  subsequent  day  named  in  the  act.  • 

"All  such  regulations,  orders,  and  decrees  shall,  as  speedily  as  may 
be  after  publication,  be  transmitted  by  the  ministers,  with  tiie  opinions 
of  theii  advisers,  as  drawn  up  by  them  severally,  to  the  Secretary  of 
State,  to  be  laid  before  Congress  for  revision. 

"The  forms  and  practice  in  each  consular  court  have  now  become  set- 
tled by  usage.  Each  consul  is  required  to  conform  to  them.  Shouhl  he 
find  defects  in  any  part  of  the  existing  system,  he  will  call  the  atten- 

S.  Mis.  102— VOL.  I 52  SI 7 


§  125  ]  CONSULS.  [chap.  v. 

tiou  of  the  diplomatic  representative  of  the  United  States  to  them.  The 
power  of  directing-  a  change  is  vested  in  that  ofiflcer  by  hiw,  and  should 
be  exercised,  if  called  for  by  circumstances,  in  the  manner  prescribed, 
in  the  foregoing  sections. 

''The  power  of  commencing  original,  civil,  and  criminal  proceedings 
is  vested  in  consular  officers  exclusively,  except  that  capital  cases  for 
niurder  or  insurrection  against  the  Government  of  either  of  the  countries 
named  in  the  statute,  or  offenses  against  the  public  peace  amounting 
to  felony  under  the  laws  of  the  United  States,  committed  by  citizens  of 
the  United  States,  may  be  tried  before  the  minister.  Original  jurisdic- 
tion is  vested  in  the  ministers  also  in  cases  where  the  consular  officer 
is  interested  either  as  party  or  witness. 

"A  perusal  of  the  several  scctiony;  of  the  existing  statutes  may  leave 
the  diplomatic  agent  in  doubt  as  to  i'hether  it  was  the  intention  of  Con- 
gress to  make  his  jurisdiction  in  capital  cases  exclusively  original,  or  ex- 
clusively appellate,  or  either,  as  the  case  may  be,  or  simply  revisory. 
Section  4084  gives  to  ministers  and  consuls  in  China,  Japan,  Siam,  Egypt, 
and  Madagascar  power  to  arraign  and  try  'all  citizens  of  the  United 
States  charged  with  offenses  against  the  law.'  Section  408C  refers  to  the 
jurisdiction  so  conferred  as  exercisable  'in  both  criminal  and  civil  mat- 
ters.' Section  4087  authorizes  each  of  the  consuls  at  ports  in  the  above- 
named  countries  to  arrest  and  try  all  offending  citizens  of  the  United 
States.  Section  4090  ])rovides  that  cai)ital  cases  may  be  tried  before 
the  minister  if  allowed  jurisdiction  by  treaties.  Section  4091  authorizes 
^ach  of  the  ministers  in  the  countries  named 'to  hear  and  decide  all 
cases,  criminal  and  civil,  which  may  come  before  him,  by  app.eal,'  in  cases 
■where  appeal  is  provided.  Section  4102  provides  that  insurrection  or 
rebellion  against  the  Government  of  either  of  those  countries,  and  mur- 
der, shall  be  capital  offenses  punishable  with  death,  but  no  person  shall 
be  convicted  unless  the  consul  and  his  associates  all  concur,  and  the 
minister  also  approves  of  the  conviction.  Section  4106  provides  that 
where  the  consul  shall  be  of  the  opinion  that  associates  will  be  useful, 
there  shall  not  be  less  than  four  such  associates  in  capital  cases.  Sec- 
tion 4108  provides  that  the  jurisdiction  allowed  by  the  ministers  in  the 
countries  named  above  shall  be  exercised  by  them  in  those  countries 
wherever  they  may  be.  Section  4109  provides  that  the  jurisdiction  of 
the  minister,  in  all  matters  of  crimes, 'except  in  capital  cases,  *  *  * 
shall  be  appellate  only.' 

"  If  in  doubt  on  these  points  it  may  be  advisable,  wherever  there  is  a 
consular  court  established,  for  the  di])lomatic  agent  to  confine  his  juris- 
diction to  matters  of  revision  and  appeal,  as  the  course  most  consonant 
with  the  usual  principles  of  justice  which  it  is  made  his  duty  to  apply. 

"The  statute  provides  that  in  the  case  of  a  conviction  entailing  the 
death  penalty,  it  shall  be  the  duty  of  the  minister  to  issue  his  warrant 
for  the  execution  of  the  convict,  appointing  the  time,  place,  and  man- 
ner; but  if  the  minister  is  satisfied  that  the  ends,^of  public  justice  de- 
mand it,  he  nuiy  fi'om  time  to  time  postpone  svcit  execution  ;  and  if  he 
Jinds  miti(jaiin<i  circumstances  tcliich  authorize  it,  he  may  submit  the  case 
to  the  President  for  pardon. 

"  As  this  provision  stands  it  ap])ears  to  make  the  diplomatic  agent  the 
sole  judge  of  the  propriety  of  extending  Executive  clemency  to  the  convict. 
It  was  probably  not  the  intent  of  Congress  to  bar  theexercise  of  the  Presi- 
dent's i^ower  of  ])ar<lon  at  the  discretion  of  a  diplomatic  agent;  and  it 
would  be  manifestly  imi)roperas  well  as  of  doubtful  constitutionality  to 
do  so  in  the  possible  case  of  conviction  being  had  before  the  officer 

818 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZED  LANDS.      [  ^125. 

whose  duty  it  i«iiiade  to  execute  the  sentence.  In  cases  joining'  under 
this  statutory  i)rovisi()n  llie  I)ei»ait!ueut  of  Stale  (hems  it  advisalde  that 
the  diplomatic  agent  sliouhl  always  regard  the  ends  ot  puhlu;  justice  as 
requiring  ])ostj)oiiement  ot  the  execution  until  tiie  case  is  reported  and 
copiesot  thejudgmentaiid  testimony  are  transmitted  to  the  Depaitment 
of  State  and  the  President's  views  in  the  premises  shall  have  heen  le- 
ceived. 

•'Consuls  nuiy  also,  wlitMi  ofojunion  that  legal  (piestions  may  an.ve  in 
wliich  assistance  will  be  useful,  or  that  a  j)unishment  in  excess  of  one 
huudred  dollars'  line  or  sixty  da.\s'  in)prisonment  is  re(juire<I,  summon 
associates,  citizens  of  the  United  States,  not  more  than  lour  in  numlter, 
taken  by  lot  Irom  a  list  to  be  i)reviously  approvetl  by  the  minister,  to 
sit  with  them  on  the  trial,  each  of  whom  is  to  enter  upon  the  record  his 
judgment  and  opinion,  and  to  sign  the  same  ;  but  the  consul  himself 
gives  the  judgment  in  the  case,  whether  it  accords  with  that  of  his  as- 
sociates or  not. 

"In  trials  for  capital  ofienses  there  must  be  not  lesstiian  four  associ- 
ates, who  must  all  agree  with  the  consul,  and  the  oi)inion  must  be  ap- 
l)roved  by  the  minister  before  there  can  b*  a  conviction. 

"It  is  the  duty  of  a  consular  officer  after  arrival  at  his  post  to  make 
himself  acquainted  with  the  leading  resident  citizens  of  the  United 
States,  in  order  that  he  may  nominate  for  the  aj»i)roval  of  the  iuinister 
a  list  of  individuals  for  the  puriK)ses  of  the  statute. 

"The  list  should  be  full,  so  as  to  embrace,  if  possible,  every  interest 
in  the  community.  It  shouhl  be  composed  exclusively  of  citizens  of  the 
United  States  of  good  repute  residing  at  the  place.  From  time  to  time 
it  should  be  revised.  No  person  should  be  jiermitted  to  act  as  an  as- 
sociate on  a  trial  who  has  any  interest,  direct  or  contingent,  in  the  suit. 

"  Section  4106  of  the  Kevised  Statutes  seems  to  give  consids  only  the 
discretionary  power  to  summon  associates.  In  practice,  however,  it  is 
customary  for  the  minister  to  exercise  this  power  in  cases  wliere  he  has 
original  jurisdiction. 

"  In  the  infliction  of  punishments  on  persons  convicte<l  in  consular 
courts,  dii)lomatic  agents  as  well  as  consular  officers  are  expected  to  bo 
governed  by  the  provisions  of  the  statutes  of  the  Uidted  Stat»'s  pre- 
scribed for  similar  offenses,  and  will  be  careful  that  the  sentence  iu  each 
case  is  in  conformity  therewith. 

"  It  is  the  duty  of  diplomatic  agents  equally  with  consular  officers  to 
encourage  the  settlement  of  controversies  of  a  civil  character  by  mutual 
agreement,  or  by  submitting  them  to  the  decision  of  referees  ;  and  the 
form  of  such  submission  is  to  be  acknowledged  before  the  otlicer.  After 
hearing  any  case  the  referees  are  required  to  deliver  their  award,  sealed, 
to  the  officer,  who  is  to  open  it  in  court.  If  he  accepts  the  award  he 
shall  indorse  the  fact,  and  render  judgment  thereon.  The  parties,  |u»\v- 
ever,  may  always  make  a  settlement  before  return  is  maile  to  the  officer. 

"  In  some  criminal  cases  it  is  lawful  for  the  parties  concerned  therein, 
with  the  assent  of  the  minister  in  the  country,  or  consul,  to  adjust  or 
settle  the  same  among  themselves  upon  pecuniary  or  other  considera- 
tions. 

"  The  minister  is  authorized  to  hear  and  decide  all  cases,  criminal  and 
civil,  which  may  come  before  him  by  appeal,  ami  to  issue  all  jirocesses 
necessary  to  execute  the  power  conferred  upon  him  ;  and  he  is  lully  em- 
powered" to  decide  finally  any  case  upon  the  evidence  which  comes  up 
with  it,  or  to  hear  the  parties  further,  if  he  thinks  justice  will  be  pro- 
moted thereby.     He  may  also  prescribe  the  rules  upon  which  new  trials 

819 


§125]  CONSULS.  [chap.  V. 

may  be  jiiaiited,  either  by  tbe  eoiisul  or  by  biinself.  Provisiou  is  also 
made  tor  ai)i)eal  in  certain  eases  fi  om  tbe  decision  of  the  minister  to  the 
circuit  court  for  tbe  district  of  California. 

"  An  appeal  may  be  taken  to  the  minister  fronr  a  decision  of  a  consul 
acting  alone,  where  tbe  tine  exceeds  one  hundred  dollars  or  the  term  of 
imi)risonment  for  misdemeanor  exceeds  sixty  days. 

"  If  associates  sit  with  tbe  consul  in  criminal  proceedings  (except  cap- 
.ital  and  except  in  tbe  case  mentioned  in  tbe  preceding  paragraph)  an 
appeal  can  be  taken  to  tbe  minister  only  in  the  event  of  disagreement 
between  tbe  consul  and  any  of  tbe  associates. 

"  In  civil  cases  the  consul  is  required  to  summon,  under  the  statute, 
associates,  therein  described,  to  sit  with  him  (1)  when  be  is  of  opinion 
that  the  case  involves  legal  perplexities,  or  (2)  when  the  damages  de- 
manded exceed  five  hundred  dollars.  In  a  case  in  which  the  damages 
demanded  do  not  exceed  live  hundred  dollars,  if  he  decide  the  case  with- 
out aid,  his  decision  is  final.  But  in  such  cases  when  associates  sit  with 
■the  consul,  an  appeal  can  be  taken  to  tbe  minister  where  there  is  a  dis- 
agreement of  opinion  between  any  of  the  associates  and  the  consul." 

Printed  Pers.  lust.,  Dip.  Agents,  l«'-5. 

As  to  consular  jnrisfliction  in  Turkey  of  liomicides  of  Turks  by  United  States 
citizens,  see  Mr.  Evarts,  Sec.  of  State,  to  Aristarchi  Bey,  Mar.  30,  1878 
MSS.  Notes,  Turkey. 

For  reports  on  judicial  functions  of  consuls,'  see  MSS.  Eep.  Book,  Dept.  of 
State,  vol.  8,  pp.  97,  233,  369,  379,  4«9. 

As  to  consular  jurisdiction  iu  Makommedan  countries,  see  Mr.  Webster,  Sec.  of 
State,  to  Mr.  Payne,  Mar.  30,  1851.     MSS.  Inst.,  Barb.  Powers. 

As  to  appeals  from  consular  courts,  see  letter  of  Mr.  Fish,  Sec.  of  State,  to 
Senator  Butler,  Mar.  24,  1875.     MSS.  Dom.  Let. 

In  Senate  Ex.  Doc.  No.  25,  41st  Cong.,  3d  sess.,  -will  be  found  a  "  copy  of  regula- 
tions for  the  consular  courts  of  the  United  States  in  Japan,  decreed  and 
'issued,  by  the  minister  of  the  United  States  for  that  country." 

As  to  passports  by  consuls  iu  Oriental  lands,  see  infra,  §  191. 

As  to  consular  jurisdiction  under  treaties,  see  supra,  §  68;  infra,  §  153.  See  also 
Mr.  Shei)pard's  pamphlet  on  Extraterritoriality,  in  reference  to  Japan. 
The  question  of  foreign  consular  jurisdiction  over  crimes  is  examined  with 
great  fullness  in  4  Lawrence  Com.sur  droit  int.,  chap.  i.  See  also  Schuy- 
ler's Am.  Diplom.,  64  jf. 

Judicial  powers  are  not  necessarily  incident  to  the  office  of  consul, 
although  usually  conferred  upon  consuls  of  Christian  nations  in  pagan 
and  Mohammedan  countries  for  the  decision  of  controversies  between 
their  fellow-citizens  or  subjects  residing  or  commorant  there,  and  for 
the  punishment  of  crimes  committed  by  them.  The  existence  and  ex* 
tent  of  such  powers  depend  on  the  treaty  stipulations  and  positive  laws 
of  the  nations  concerned. 

Dainese  t;.  Hale,  91  U.  S.,  13. 

The  treaty  between  the  United  States  and  the  Ottoman  Empire,  con- 
cluded June  5,  1862  (if  not  that  made  in  1830),  has  the  effect  of  con- 
ceding to  the  United  States  the  same  privilege  in  respect  to  consular 
courts  and  the  civil  and  criminal  jurisdiction  thereof  which  are  enjoyed 
by  other  Christian  nations ;  and  the  act  of  Congress  of  June  22,  1860, 
established  the  necessary  regulations  for  the  exercise  of  such  jurisdic- 
820 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZED  LANDS.     [§  125. 

tiou.     But  as  this  jurisdiction  (that  of  consular  (Mdirts)  Is,  in  terms,  only 
such  as  is  allowed  by  the  laws  of  Turkey,  or  by  its  usa<res  in  its  inter- 
course with  other  Christian  nations,  those  laws  or  usages  must  be  shown 
in  order  to  know  the  precise  extent  of  such  jurisdiction. 
Ibid. 

The  defrndaut,  when  consul-general  of  the  United  States  in  Hgypt, 
in  1804,  issued  an  attachment  against  the  goods  of  the  plaintill"  tliere 
situate.  Phiin tiff,  and  the  persons  at  whose  suit  the  attachment  was 
issued,  were  citizens  of  the  United  States  and  not  residents  or  sojourn- 
ers in  tlie  Turkish  don>inions.  For  this  act  the  plaintill'  brought  suit  in 
this  country  to  recover  the  value  of  the  goods  attached.  The  defendant 
pleaded  his  official  character,  and,  as  incident  thereto,  claimed  jurisdic- 
tion to  entertain  the  suit  in  which  the  attachment  was  issued.  It  was 
held  that  the  plea  was  defective  for  not  setting  forth  the  hiws  or  usages 
of  Turkey  upon  which,  by  the  treaty  and  act  of  Congress  conferring  the 
jurisdiction,  the  latter  was  made  to  depend,  and  which  alone  would  show 
its  precise  extent,  and  that  it  embraced  the  case  in  question. 

Ibid. 

A  consular  court  is  a  court  of  limited  jurisdiction,  and  all  the  juris- 
dictional facts  must  be  alleged  in  the  libel  or  petition  ;  otherwise  it  will 
be  insufficient.  In  cases  of  appeal  from  the  consular  and  ministerial 
courts  of  China  and  Japan  to  the  circuit  court  of  the  United  States  for 
the  district  of  California,  the  record  on  appeal  must  show  an  allowance 
of  the  appeal.  A  «itation  is  necessary,  unless  the  appeal  is  allowed  in 
open  court,  though  it  may  be  questioned  whether  a  citation  is  not 
always  necessary,  if  the  consular  court  has  once  adjourned  after  ren- 
dering a  decree,  there  being  no  terms  of  such  courts. 
Steamer  Spark  v.  Lee  Cboi  Cbum,  1  Sawyer,  713. 

The  question  of  extraterritorial  jurisdiction  for  crime  is  discussed,  iu 
its  general  relations,  supra^  §  9,  ff. 

In  the  absence  of  any  specific  appropriation  for  the  object,  the  ex- 
pense of  transferring  prisoners,  held  by  the  authorities  of  the  United 
States  in  China,  from  Amoy  to  Hong-Kong  for  trial  on  a  charge  of 
piracy,  is  a  lawful  charge  upon  the  judiciary  fund,  so  called,  being  the 
fund  appropriated  for  defraying  "  the  expenses  of  i)rosccutions  for 
offenses  committed  against  the  United  States,  and  for  the  safe  keeping 
of  prisoners." 

6  Op.,  59,  Gushing,  1853. 

Consuls  at  the  Barbary  ports,  and  in  general  in  other  .Mohammedan 
countries,  must  not  be  confounded  in  respect  of  functions  or  of  regula- 
tions with  the  consuls  established  iu  the  counlries  of  Christendom. 
Their  condition  is  referable  to  peculiar  doctrines  of  the  law  of  nations, 

821 


§  125.]  CONSULS.  [chap.  v. 

and  they  are  governed  in  many  respects  by  particular  treaties  and  acts 
of  Congress. 

7  Op.,  242,  Cushiiig,  1855. 

Congress  lias  empowered  the  commissioners  and  consuls  of  the  United 
States  in  China  to  exercise  judicial  authority  over  their  fellow-citizens. 
The  consuls  have  original  jurisdiction,  each  within  his  consular  circum- 
scription, in  civil  cases  involving  a  question  of  damages  which  arise 
between  two  or  more  citizens  of  the  United  States,  and  in  all  cases  of 
crime  committed  by  a  citizen  of  the  United  States.  In  civil  matters  if 
the  damage  demanded  exceed  five  hundred  dollars  then,  of  necessity, 
and  in  other  cases,  if  the  consul  see  fit,  the  consul  is  to  summon  to  his 
aid  not  less  than  two  nor  more  than  three  citizens  of  the  United  States, 
as  assessors,  who  shall  with  him  hear  the  case. 

If  the  associates  concur  in  opinion  with  the  consul,  his  decision  is 
final;  but  if  they  differ  with  him,  their  opinions  are  to  be  noted  on  the 
record,  and  either  party  may  appeal  to  the  commissioner.  In  civil 
cases,  and  in  all  criminal  cases  except  capital  ofienses,  the  commis- 
sioner's authority  is  appellate.  In  capital  cases  there  is  no  appeal,  but 
the  conviction  is  invalid  unless  approved  by  the  commisioner,  who,  if 
he  approve  it,  is  either  to  issue  a  warrant  of  execution,  or,  in  his  dis- 
cretion, submit  the  case  to  the  President  for  pardon. 

7  0p.,495,  Cu8hing,1855. 

In  all  criminal  cases,  except  capital  and  certain  minor  offenses,  the 
consul  must  summon  one  or  more  citizens  of  the  United  States,  not  ex- 
ceeding four,  to  sit  with  him.  If  they  concur,  the  decision  is  final;  if 
they  differ,  the  case,  with  the  record  and  all  the  evidence,  is  referred  to 
the  commissioner,  who  may  either  determine  it,  or,  if  he  choose,  remit 
the  case  with  instructions  to  the  consul  for  further  proceedings. 

Hid. 

In  certain  minor  cases  the  consul  may  sit  alone ;  in  capital  cases  he 
must  always  proceed  with  four  associates.    But  in  a  civil  controversy 
between  a  Chinese  and  an  American,  the  authorities  of  the  two  Gov- 
ernments are  to  have  concerted  action. 
Ibid. 

Controversies  occurring  in  China  between  citizens  of  the  United 
States  and  subjects  of  any  other  (Christian)  Government,  are  to  be  reg- 
ulated by  the  treaties  existing  between  the  United  States  and  such  Gov- 
ernments, respectively. 

Ibid. 

In  the  exercise  of  their  jurisdiction  the  consul  and  his  associates,  and 
the  commissioner,  are  to  be  guided  by  the  laws  of  the  United  States, 
the  common  law,  and  such  supplemental  decrees  and  regulations  as  the 

822 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZED  LANDS.     [§  125. 

comraissiouer  may  from  time  to  time  maJie.     The  commissioner,  iu  ILih 
sense,  is  the  person  vested  with  tlie  powers  of  chief  diplomatic  func- 
tionary of  the  United  States. 
Ibid. 

In  civil  cases,  not  involving  a  question  of  damages,  the  safer  course 
would  be  to  adhere,  so  far  as  may  be,  to  the  spirit  of  the  law,  which 
makes  the  commissioner  the  appellate  supervisor  of  the  judicial  acts  of 
the  consuls. 

Ibid. 

In  the  Levant  the  general  system  is  (1)  Turkish  tribunals  for  ques- 
tions between  isubjects  of  the  Porte  and  foreign  Christians ;  (!')  consular 
courts  for  the  business  of  each  nation  of  foreign  Christians ;  (3)  trial  of 
questions  between  foreign  Christians  of  difl'erent  nations  in  the  con- 
sular court  of  the  defendant's  nation;  (4)  mixed  tribunals  of  Turkish 
magistrates  and  foreign  Christians  substituted  by  common  consent  in 
part  for  cases  between  Turks  and  foreign  Christians;  (5)  finally,  for 
causes.between  foreign  Christians,  the  substitution  also,  of  mixed  tri- 
bunals in  place  of  the  separate  consular  courts.  To  all  these  extrater- 
ritorial privileges  Americans  are  entitled. 
7  Op.,  565,  Cusbiug,  1855. 

The  judicial  authority  of  the  United  States  commissioner  to  China  is 
restricted  to  the  five  ports  mentioned  in  the  treaty  with  that  nation. 
9  Op.,  294,  Black,  1859. 

Under  the  act  of  August  11,  1848,  the  United  States  consuls  in  Tur- 
key have  judicial  powers  only  in  criminal  cases. 

9  Op.,  296,  Black,  1859. 

The  salary  of  a  person  appointed  marshal  of  the  United  States  con- 
sular court  at  Shanghai  begins  from  the  time  of  his  entering  upon  such 
duties  as  are  i)reliminary  to  his  dei)arture  for  the  field  of  his  services 
after  taking  the  oath  of  oflBce  and  giving  the  bond  prescribeil  by  law. 

10  Op., 250,  Bates,  1862. 

A  United  States  consular  court  in  Jajian  cannot,  in  a  suit  against  a 
citizen  of  the  United  States  by  a  Dutch  subject,  allow  aclaimof  set-ofi 
beyond  the  extent  of  the  plaintiff's  demand.  Nor  can  siu-h  a  court  in 
Japan  render  a  judgment  against  a  i)erson  not  a  citizen  of  the  United 
States. 

11  Op.,  474,  .^ptH-d,  If^eu. 

The  consular  courts  of  the  United  States  at  Honolulu  have  the  ex- 
clusive right  of  determining  disputes  occurring  among  the  crew  of  a 
vessel  of  the  United  States,  under  the  "  favored-nation"  clause  of  the 
treaty,  such  a  concession  having  been  made  to  France. 

11  Op.,  508,  Speed,  1866. 

823 


§  125.]  CONSULS.  [chap,  v 

In  the  case  of  consular  courts  vested  with  criminal  Jurisdiction,  as  \v, 
the  case  of  other  courts  having  similar  jurisdiction,  a  sentence  of  im- 
l)risonment  cannot  be  legally  executed  beyond  the  territorial  jurisdic- 
tion of  the  court  which  i)ronounces  it,  unless  by  legislative  nuthority. 
Hence,  in  the  absence  of  any  act  of  Congress,  convicts  of  the  consular 
courts  at  Smyrna  and  Constantinople,  if  sent  to  the  United  States  for 
imprisonment,  couhl  not  legally  be  held. 
14  Op.,  522,  Williams,  1875. 

In  the  United  States  Consular  Regulations  (ed.  of  1881)  the  law  as  to 
consuls  is  thus  declared  :  "  In  Mohammedan  and  semi-civilized  countries 
the  rights  of  extraterritoriality  have  been  largely  preserved,  and  have 
been  generally  confirmed  by  t  re;!  ties  to  consular  officers.  To  a  degree  they 
enjoy  the  imujunities  of  diplomatic  representatives,  besides  certain  pre- 
logatives  of  jurisdiction,  together  with  the  right  of  worship,  and,  to  some 
extent,  the  right  of  asvlura  "  (§  80).  These  immunities  extend  to  an  ex- 
emption from  both  the  civil  and  criminal  jurisdiction  of  the  country  to 
which  they  are  sent,  and  protect  their  household  and  the  effects  covered 
by  the  consular  residence.  Their  personal  property  is  exempt  from  tax- 
ation, though  it  may  be  otherwise  with  real  estate  or  movables  not 
connected  with  the  consulate.  Generally  they  are  exenipt  from  all  per- 
sonal impositions  that  arise  from  the  character  of  a  subject  or  citizen  of 
the  country  (§  81).  ''The  consular  jurisdiction  in  these  countries  is 
both  civil  and  criminal,  and  has  in  most  cases  been  provided  for  by  the 
sti])ulations  of  treaties.  The  extent  of  its  exercise,  as  well  as  the  pen- 
alties and  i)unishments  to  be  enforced,  depend  generally  upon  the  laws 
of  his  own  country  to  the  exclusion  of  the  jurisdiction  of  all  local  tribu- 
nals.'' (See  Lawrence's  Wheaton,  7.3,  74,  notes.  The  question,  on  its 
criminal  side,  is  discussed  in  Wharton's  Criminal  Law,  8th  ed.,  §  273; 
and  see  Strupp,  in  re,  11  Blatch.,  124.) 

Such  jurisdiction,  however,  is  limited  to  barbarous  or  semi-civilized 
states.  (The  Wiliiani  Harris,  Ware,  307.)  Nor, in  England,  will  a  for- 
eign consul  be  regarded  as  entitled  as  such  to  administer  the  estate  of 
a  domiciled  subject  of  the  country  which  such  consul  represents.  (And 
see  Schuyler's  Am.  Diplom.,  64,  ff.) 

"Consuls  haA^e  exclusive  jurisdiction  over  crimes  and  offenses  com- 
mitted by  citizens  of  the  United  States  in  Borneo,  China,  Japan,  Mada- 
gascar, and  Siam.  In  Morocco,  Tripoli,  and  Tunis  the  consuls  are  em- 
])owered  to  assist  in  the  trials  of  citizens  of  the  United  States- accused 
of  murder  or  assault.  In  Persia  citizens  of  the  United  States  commit- 
ting offeuvses  are  to  be  tried  and  judged  in  the  same  manner  as  are  the 
subjects  of  the  most-favored  nations.  Americans  committing  ofienses 
in  Tuikey  should  be  tried  by  their  minister  or  consul,  and  are  to  be 
l)unished  ac(;ording  to  their  olfense,  following,  in  this  respect,  the  usage 
observed  toward  other  Franks;  but,  in  consequence  of  a  disagreement 
as  to  the  true  text  of  the  treaty,  consuls  in  the  Ottoman  dominions  are 
instructed  to  take  the  directions  of  the  minister  of  the  United  States  at 
Constantinople  in  all  cases  before  assuming  to  exercise  jurisdiction  over 
criminal  ofienses."     (See  infra,  §  105.) 

"In  China  and  Japan  the  judicial  authority  of  the  United  States  will 
be  considered  as  extending  over  all  persons  duly  shipped  and  enrolled 
upon  the  articles  of  any  merchant  vessel  of  the  United  States,  whatever 
be  the  nationalitv  of  such  person.     And  all  offenses  which  would  be 

824 


CHAP,  v.]    JUDICIAL  FUNCTIONS  IN  SEMI-CIVILIZKI)  LANDS.     [§  125. 

justiciable  by  the  cousular  courts  ot  tlu-  UnittMl  StjitON,  wlien^  the  iier 
SODS  so  offeiulinjr  are  native  born  or  natiuiilizcd  citizens  of  th«'  United 
States,  enipl<)ye<i  in  the  merchant  service  Uicreot,  arc  e(|naliy  jnsti<'iahlf 
by  the  same  consular  courts  in  the  case  of  seamen  of  Ibrcijiii  iiafionality. 

''Seamen  serving  on  board  public  vessels  of  the  United  Stttes,  wlio 
have  committed  ofieuses  on  shore  in  Japan  and  China,  are  held  to  Ik.* 
subject  to  the  jurisdiction  of  the  consul  of  the  country  under  whose  Hajj 
they  are  serving:. 

"Jurisdiction  over  civil  disputes  is  conferred  by  treaties  with  Httrneo, 
China,  Japan,  Ottoman  Porte,  Madagascar,  Siam,  Morocco,  Muscat, 
Persia,  Tripoli,  Tunis,  and  the  Samoan  Islands.  This  jurisdiction  is 
exclusive  in  disputes  between  citizens  of  the  United  States.  In  Persia 
suits  and  dis))utes  between  Persian  subjects  and  American  citizens  are 
to  be  heard  before  the  Persian  tribunal  where  the  consul  is  located,  and 
in  the  presence  of  an  employe  of  the  consul.  In  Japan  it  exten<ls  to 
claims  of  Japanese  against  Americans.  In  China,  Siam,  and  Samoa  the 
jurisdiction  is  joint  in  controversies  between  Americans  and  Chinese,  Sia- 
mese, 01'  Samoans.  In  Madagascar  the  exclusive  jurisdiction  extends 
to  disputes  between  citizens  of  the  United  States  and  subjects  of  Mada- 
gascar. In  Turkey  there  can  be  no  hearing  in  a  dispute  hetwe»'n  Turks 
and  Americans  unless  the  dragoman  of  the  consulate  is  present." 

U.  S.  Cou8.  Reg.,  18bl,  ^  98,  ff. 

Article  XXIX  of  the  same  regulations  (1881)  treat  of  consular  jurisdiction  '•  in 
Oriental,  non-Christian,  and  uncivilized  countries,"  as  follows:  Jii<liciul 
powers;  mixed  courts;  what  laws  to  govern  proceedings;  forms  of  pro- 
ceedings; limitation  of  cousular  Jiiiisdiitioii  ;  appeals;  marshals,  jails,  &c. 

620 


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